AJIBODE & ORS v. GBADAMOSI & ORS
(2021) LCN/4954(SC)
In The Supreme Court
On Friday, January 22, 2021
SC.254/2012
Before Our Lordships:
Nwali Sylvester Ngwuta Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
1. ADEKUNLE AJIBODE 2. KAIRMU AJIBODE 3. CHIEF RAIMI AJIBODE 4. CHIEF M. A. AJIBODE 5. JOHN AYINDE APPELANT(S)
And
- DAUDA GBADAMOSI 2. PRINCE SADIRU OBALANLEGE 3. YISA AKINBOYEDE 4. MURAINA ABATAN (For Themselves And On Behalf Of Aidokun-Ogbo Family Of Ewupe) RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
If the Trial Court lacked jurisdiction to entertain the matter, it follows that the Court below had no jurisdiction to hear the appeal arising therefrom. Jurisdiction of a Court is donated to it by either the constitution or by a statute. See Miss Oluchi J. Anyanwoko vs Chief Mrs. Christy O. N. Okoye & 4 Ors. (2010) 1 SC (Pt. 11) 30.
The jurisdiction of the Court remains dormant until the claim before the Court ignites it. If the claim has not been brought before the Court by due process the claim cannot invoke the Court’s jurisdiction, and the Court labours in vain in entertaining the suit. This is the case here. The trial Court lacked jurisdiction to entertain the suit nor has the Court below the competence to determine the appeal arising from proceeding which are void. PER NGWUTA, J.S.C.
WHETHER OR NOT ANYBODY CAN BE ALLOWED TO PRACTICE AS A LEGAL PRACTITIONER IN NIGERIA
This Court has held in quite a number of cases that by Section 2(1) of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990 that no person or institution other than that prescribed in the Act shall be allowed to practice as legal practitioner in Nigeria. The said Section 2(1) provides as follows: –
“Subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.”
Section 24 of the said Act states that: –
“Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceedings.”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner in Nigeria, he must have his name on the role of Legal Practitioners, otherwise, he cannot engage in any form of legal practice including the signing of legal documents for use in Court. That was the position taken by this Court in Okafor v Nweke (2007). PER OKORO, J.S.C.
WHETHER OR NOT A DEFENDANT WHO WAS AWARE OF ANY DEFECT IN A WRIT OF SUMMONS CAN RAISE THE ISSUE OF THE DEFECT
The Courts these days lean in favour of doing substantial justice in a case rather than hanging on crass technicality to re-open a procedural irregularity that had been waived by the party who could or should have timeously raised it: NNEJI & ORS. v. CHUKWU & ORS. (1988) 6 SCNJ 132 at 138 – 140; ATANDA v. AJANI (1989) 3 NWLR (pt. 111) 511, at 545; NDAYAKO & ORS. v. DANTORO & ORS. (supra).
A defendant, who though aware of any defect in the writ of summons, still took steps in the proceedings is estopped from subsequently raising the issue of the defect: NWOYE v. NIGERIA ROAD CONSTRUCTION LTD (1966) NMLR 254; SADIKU OBATEMI SAMUEL v. SAMUEL ORISANWO (1967) NMLR 27; in NIGERIA PRODUCE MARKETING Co. LTD v. COMPAGNE NOGU D’IMPORTATION (1971) 1 NMLR 223 the defendant who, submitting to the jurisdiction of the trial Court, had asked for a date to file pleadings (as these Appellants, as defendants, did at the trial Court) was held to have “taken steps” in the proceedings and thereby estopped from complaining subsequently about the defect in the writ. On the contrary, a defendant (unlike the defendants/Appellants herein) who entered “conditional appearance” or was appearing in protest would not be estopped or barred from subsequently raising the issue of any defect on the writ: AGUDA: PRACTICE & PROCEDURE IN SUPREME COURT, etc. (1988) paragraphs 3.121 – 3.122 at page 44. PER EKO, J.S.C.
NWALI SYLVESTER NGWUTA, J.S.C. (Delivering the Leading Judgment): The Plaintiffs [now Respondents] commenced Suit NO. HCT/72/1995 in the High Court of Ogun State of Nigeria, in the Otta Judicial Division on 24th April, 1995.
Endorsed on the writ of summons are the plaintiffs’ (Respondents’) claims against the defendants (now Appellants). The claims are hereunder reproduced:
i. A declaration that the 1st – 5th Defendants are not members of or related to Adoku-Ogbo Family of Ewupe, Otta, Ogun State.
ii. A declaration that the purported Power of Attorney dated 20th day of July, 1980 and deed of conveyance dated 4th day of September, 1985 executed jointly by the 1st to 7th Defendants and/or their representatives are irregular, wrongful, null and void of no legal effect whatsoever.
iii. An Order setting aside all sales and transactions affected by or pursuant to the said purported power of attorney in respect of Adoku-Ogbo Family of Ewupe Via Otta.
iv. Perpetual injunction restraining the 1st – 5th Defendants from parading themselves as members of Adokun-Ogbo Family of Ewupe Via Otta.
v. Perpetual injunction restraining the 1st- 5th Defendants, their servants, agents, or privies from dealing with Adokun-Ogbo Family of Ewupe Via Otta.”
In their amended statement of claim dated 18th October, 1996 but filed on 1/12/2000, the plaintiffs claimed as follows: –
“(a) Declaration that the 1st, 2nd, 3rd, 4th and 5th Defendants are not members of Adokun-Ogbo Family of Ewupe.
(b) Declaration that purported Power of Attorney dated 21/7/1980 and the Deed of Conveyance dated 4/9/1980 purportedly executed jointly by the 1st to 6th Defendants and other persons named therein and/or their representatives are irregular, unlawful, null, void and of no effect whatsoever.
(c) An order setting aside all sales and transactions effected under or pursuant of the purported Power of Attorney in respect of Adokun-Ogbo Family Land.
(d) Perpetual injunction in restraining the 1st, 2nd, 3rd, 4th and 5th Respondents from parading themselves as members of Adokun-Ogbo Family of Ewupe.
(e) Forfeiture of the tenancy enjoyed by the 1st, 2nd, 3rd, 4th and 5th Defendants and other descendants of Ajibode Family over Adokun-Ogbo Family Land at Ewupe on the grounds of misconduct.
(f) Perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 5th Defendants by themselves or a member of Ajibode Family, their servants, agents and privies from dealing with Adokun-Ogbo Family in any capacity.”
A further amended statement of claim was filed on 6/3/2000. Yet another further amended statement of claim was filed on 25/4/2002. This is the operative statement of claim and contains the reliefs endorsed on the amended statement of claim.
The 1st to 5th Defendants filed a statement of defence on 27th February, 1997. A statement of defence was filed separately for the 2nd Defendant on 25/03/1997.
Another statement of defence was filed for the 1st to 5th Defendants on 2/09/1998. Yet another statement of defence and curiously a reply to the statement of defence of the 1st to 5th Defendants, was filed on 2/09/1998.
Finally, an amended writ of summons was filed on 1/12/2000 and the claim herein endorsed appears to tally with the claim in the further amended statement of claim filed on 25/04/2002.
The judgment of the trial Court delivered on 25/05/2007 relates to four [4] Plaintiffs and six (6) Defendants. In the judgment, the trial Court granted reliefs nos 3 and 6 and dismissed the rest of the Plaintiffs claims.
The Plaintiffs/Appellants appealed the judgment to the Court of Appeal, Ibadan Division. The lower Court allowed the appeal. It affirmed the judgment of the trial Court in respect of reliefs Nos (b) and (c) which the trial Court granted in part.
Against the judgment of the lower Court, the Respondents (now Appellants) have appealed to this Court, challenging the decision with a single ground of appeal hereunder reproduced, shorn of its particulars: –
“Ground 1: The lower Court is jurisdictionally incompetent to hear the appeal as the case was not initiated by due process of law at the trial Court.”
From the lone ground of appeal, the Appellants formulated the following issue for the Court to determine: –
“Whether the Court of Appeal had jurisdiction to sit on an appeal that emanated from the judgment delivered on the 25th day of May, 2007. Some been (sic) the decision that originated from the writ of summons filed in Suit No. HCT/72/1995 which was signed by the law office of Chief Toyer Coker & Co.”
Learned counsel for the Respondents framed the following issue from the lone ground of appeal: –
“Whether in view of the peculiar facts of this case in respect of the originating processes filed the Court of trial and the Court below did not have the jurisdiction to adjudicate on the matter.”
In arguing the issue in his brief of argument, learned counsel for the Appellants submitted that the issue of jurisdiction can be raised in any proceedings even in the Supreme Court for the first time, adding that once it is raised it will be resolved before any further step is taken in the appeal.
He cited and relied on Gaji & Ors vs Paye [2003) 7 SCN 55 at 63: and Durwode vs The State (2000) 12 SC (Pt. 1) 1 at 4. He urged the Court to hold that failure to raise the issue either in the trial Court or in the Court of Appeal will not deprive the Appellants of the right to be heard on the issue of jurisdiction.
He contended that a Court has power to entertain a matter before it if the following conditions are fulfilled:
“1. The matter is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another.
2. The subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
3. The case come before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
He referred to and relied on the following authorities:
1. Madukolu vs Nkemdilim (1962) 1 ALL NCR 587.
2. Magaji vs Matari (2000) 5 SC (sic) 46 at 57.
3. Nyame vs FRN (2010)4 SCM 67 at 92.
4. Nwankwo & Anor vs Yar’Adua & Ors (2010) 6 SCM 121 at 147
He referred to pages 1 to 23 of the records for the writ of summons and the ex parte motion seeking approval of the trial Court for the Plaintiffs (now Respondents] to institute and prosecute the suit giving rise to this appeal in a representative capacity and emphasised that the said processes were signed by the law firm of “Chief Toye Coker & Co.”
He submitted that the law office of Chief Toye Coker & Co is not qualified under Section 2(1} of the Legal Practitioners Act to sign the processes. He reproduced Section 2(1) of the Act and relied on Okafor vs Nweke (2007) ALL FWLR (Pt 368) 1016 at 1023 – 1027. Further, he relied on Section 24 of the Act and contended that the law firm of “Chief Toye Coker & Co” is not a person entitled to practice as a barrister or as a barrister and solicitor. He argued that the processes signed by the law firm are null and void, and that the suit not having been commenced by due process is incompetent and the Court had no jurisdiction to entertain same.
He urged the Court to allow the appeal.
Responding learned counsel for the Respondents, in his brief, conceded that a threshold issue can be raised even on appeal to the Supreme Court. He relied on Onyema vs Oputa (1987) 3 NWLR (Pt. 60) P. 259; Emuze vs Vice Chancellor Uniben (2003) 5 SCNJ Page 297. And again conceded that this Court has laid down condition for the competence of a matter before the Court. The conditions include the case coming before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. He relied on Madukolu vs Nkemdilim (supra) and Sken Consult Nig. Ltd vs Ukey (1981) 1 SC. 6 at 36.
Further, in his agreement with the Appellants so far, he referred to the doctrine of STARE DECISIS and the case of Okafor vs Nweke (supra) which he said was followed in SLB Consortium Ltd vs NNPC (2011) 4 SCNJ 211.
However, he submitted that a judgment is an authority for what it actually decides. He relied on Emeka vs Okadigbo & 4 Ors (2012) 18 NWLR (Pt. 1331) 55 at 95 – 97.
He argued that in Okafor vs Nweke [Supra] the offending processes signed by “JHC Okolo SAN & Co.” were a motion on notice, proposed notice of original appeal, attached to the affidavit in support of motion and the brief of argument in the motion. He said the issue before the Supreme Court then was “Whether the notice of motion notice (sic) of cross-appeal and the Appellant’s brief of argument for extension of time in this application are null and void.” He said what was in issue Okafor vs Nweke [Supra] was a set of originating processors in the application before the Court.
He argued that in the two cases Okafor vs Nweke [Supra] and SLB Consortium Ltd vs NNPC [Supra] in which the originating summons and the amended statement of claim were signed by “Adewale Adesokan & Co.” the objections were predicated on a breach of the rules of Court, but the ground of objection in this appeal is not predicted on any rule of Court. Further, he relied on Omnia Nig. Ltd vs Dyktrade Ltd. (2007) SCNJ 288 in his argument that the statement of claim is part of the originating process and when it is filed it supercedes the writ of summons and the contents therein determine the jurisdiction of the Court to entertain the suit. He argued that the statement of claim which is, according to him, part of the initiating process, was signed by a Legal Practitioner. He urged the Court to distinguish the facts of this case from the facts of Okafor vs Nweke.
He urged the Court to resolve the sole issue in favour of the Respondents and to dismiss the appeal.
My noble Lords, before I resolve the issue in this appeal, permit me to comment on the briefs filed by the parties through their respective Learned counsel.
In each brief, Learned counsel stated the facts of the case and proceeded to the issue for determination. There was no mention of the judgment of the trial Court, appeal to the lower Court or judgment of the said Court. There was scarcely any mention of the grounds of appeal. This is a deviation from the appellate practice.
RESOLUTION OF THE SOLE ISSUE:
The original writ of summons tagged “General writ of summons” is at page 2 of the records. It was issued by Chief Toye Coker & Co. The writ contained an untrue statement to the effect that Chief Toye Coker & Co. of 6, Ojugbele Street, Off Metun Road Otta, Ogun State is “Legal Practitioner for the Plaintiffs ” Chief Toye Coker & Co.” is not a single Legal Practitioner as described in the writ. Rather it indicates a firm of legal practitioners.
I accept the argument of Learned counsel for the Appellants, which his colleague for the Respondent did not counter, to the effect Chief Toye Coker & Co. cannot validly sign the writ of summons, an initiating process. I will add that the said law firm of Chief Toye Coker & Co; cannot sign any valid Court process, not being a legal practitioner within the meaning and intendment of the Legal Practitioners Acts:
Section 2(1) of the Act provides “Section 2(1) subject to the provisions of this Act a person shall be entitled to practice as a Banister or as a Barrister and Solicitor either generally or for the purpose of any particular office or proceedings.”
In my humble view “a person” as used in Section 2(1) of the Act means a natural (not a juristic) person who must have satisfied the condition precedent to call, and must have been called, to the Bar in Nigeria; or admitted under special circumstances to engage in law practice in Nigeria. The person referred to in the subsection must have been duly called to the Bar and must have been enrolled in the Supreme Court of Nigeria. Even learned counsel for the Respondents agreed, by implication, that Chief Toye Coker & Co. is not a person contemplated in Section 2(1) of the Act.
The locus classicus on this point, Okafor vs Nweke (Supra) relied on by the Appellants, but the facts of which the Respondent tried to distinguish from the facts of this case, established that any document or process for filing in Court (not just an originating process) must be signed by a person qualified to practice under the Act. Any other mode of signing and authenticating a Legal Process will render the process a nullity. See also FBN Plc & 3 Ors vs Maiwada & 2 Ors (2012) 5 SC (Pt. 111) 1, Alawiye vs Ogunsanya (2012) 12 SC (Pt.111) 1
A process signed in violation of the provisions of the Act cannot be said to have been duly filed before the Court. In the eye of the law, such process does not exist and so cannot invoke the judgment of the Court. See Ogli Oko Memorial Farm Ltd & Anor vs Nigerian, Agricultural Cooperative Bank Ltd (2008) 4 SCNJ 436.
Learned Counsel for the Respondents argued that the decision in Okafor vs Nweke (Supra) and similar cases were decisions on objections relating to breaches of rules of Court. The violation of an Act of the National Assembly is a much more serious matter than a violation of the rules of Court.
Learned counsel for the Respondents argued that the statement of claim which he says is a part of the initiating process, supercedes the writ of summons. In the suit giving rise to this appeal the originating process is the writ of summons. The subsequent statement of claim is not part of the initiating process.
I agree with Learned counsel for the Respondents that the statement of claim when filed supercedes the writ of summons. But this principle is not absolute in its applications. It applies to the contents of the writ of summons and if a new claim is contained in the statement of claim, the new claim cannot be superceded for it is not part of the claim in the writ, and the statement of claim cannot supercede its part. Most of all, if the writ of summons is filed, as in this case in violation of the Legal Practitioners Act and ipso facto null and void, the time hallowed principle of the statement of claim superceding the writ of summons will not apply. The writ is a nullity and there is nothing for the statement of claim to supercede. That which is not in existence cannot be superceded by anything.
What purports to be a writ of summons in this case became a nullity upon being filed. It could not ignite the jurisdiction of the Court and a purported process filed pursuant to it does not fare better than the writ.
Learned counsel for the Appellants argued that the trial Court and ipso facto the Court below had no jurisdiction in the matter. If the Trial Court lacked jurisdiction to entertain the matter, it follows that the Court below had no jurisdiction to hear the appeal arising therefrom. Jurisdiction of a Court is donated to it by either the constitution or by a statute. See Miss Oluchi J. Anyanwoko vs Chief Mrs. Christy O. N. Okoye & 4 Ors. (2010) 1 SC (Pt. 11) 30.
The jurisdiction of the Court remains dormant until the claim before the Court ignites it. If the claim has not been brought before the Court by due process the claim cannot invoke the Court’s jurisdiction, and the Court labours in vain in entertaining the suit. This is the case here. The trial Court lacked jurisdiction to entertain the suit nor has the Court below the competence to determine the appeal arising from proceeding which are void.
My noble Lords, I am not unaware of contrary decisions by eminent jurists of the Court below and of the apex Court.
The facts of this appeal appear to be similar to the facts in IBB Industries Ltd vs Mutunci (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487 CA and Heritage Bank Ltd vs Bentworth Finance (Nig) Ltd (2018) 9 NWLR (Pt. 1625) 420 SC.
The Court of Appeal in IBB’s case relied on the doctrine of waiver and dismissed the appeal. Also, in the Heritage Bank’s case, this Court dismissed the appeal on the same doctrine.
In each case, it would appear that the signature by a law firm was treated as an irregularity which the Appellants waived by taking part in the proceedings, being aware of the defects therein.
In the present appeal, though the Appellants took part in the proceedings and neither raised the issue that the initial process was signed by a law firm in the trial Court nor in the Court of Appeal, the defect cannot be treated as an irregularity that a party can waive. A party cannot waive the breach of a law made by the National Assembly and it is never late in any proceedings to raise the issue of jurisdiction.
I resolve the issue in favour of the Appellants, and consequently I allow the appeal. It is hereby ordered that the proceedings in the trial Court as those in the Court of Appeal be, and are hereby, declared null and void.
I order that parties bear their respective costs.
Appeal allowed.
JOHN INYANG OKORO, J.S.C.: I read in draft the judgment of my learned brother, NWALI SYLVESTER NGWUTA, J.S.C. just delivered which represents my thoughts on the lone issue raised for determination in this appeal. Accordingly, I agree with the reasons adumbrated in the judgment and the conclusion that this appeal is meritorious and deserves an order allowing same.
This Court has held in quite a number of cases that by Section 2(1) of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990 that no person or institution other than that prescribed in the Act shall be allowed to practice as legal practitioner in Nigeria. The said Section 2(1) provides as follows: –
“Subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.”
Section 24 of the said Act states that: –
“Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceedings.”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner in Nigeria, he must have his name on the role of Legal Practitioners, otherwise, he cannot engage in any form of legal practice including the signing of legal documents for use in Court. That was the position taken by this Court in Okafor v Nweke (2007)
All FWLR (pt. 368) 1016, where the originating process was signed by a law firm of J.H.C. Okolo, SAN & Co. The same position was taken in First Bank of Nigeria Plc & 3 Ors v Maiwada & 2 Ors (2012) 5 SC (pt. 111) 1, Alawiye v Ogunsanya (2012) 12 SC (pt. 111) 1, Chukwudi Nnalimu & Ors v Sunday Elodumuo & Ors (2018) LPELR – 43898 (SC), Okarika & Ors vs Samuel & Anor (2013) 7 NWLR (pt. 1352) 19 amongst others.
In the instant case, the originating process was signed by Chief Toye Coker & Co. Chief Toye Coker & Co is a law firm and not a legal practitioner. Indeed, there is no Chief Toye Coker & Co on the roll of Legal Practitioners in Nigeria. As was decided by this Court in Okafor v Nweke (supra) and other authorities cited above among others, so shall it be in this appeal. A breach of the Legal Practitioners Act cannot be termed as an irregularity. It goes to the root of the case.
From all, I have said above and the fuller reasons adumbrated in the lead judgment, it is my view that there is merit in this appeal. Accordingly, I hereby allow the appeal and abide by the consequential orders made in the lead judgment. I make no order as to costs.
Appeal Allowed.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, NWALI SYLVESTER NGWUTA, J.S.C., obliged me with the fraft of the leading judgment delivered now. I agree with His Lordship that, being meritorious, this appeal should be allowed. I abide by the consequential orders in the leading judgement. Appeal allowed.
UWANI MUSA ABBA AJI, J.S.C.: I had the privilege of going through the draft judgment of my learned brother, NWALI SYLVESTER NGWUTA, J.S.C., just delivered, which unmistakably represents my view and the position of the law that this appeal be allowed on the ground of nullity of the entire proceedings ab initio.
By a writ of summons vide HCT/72/1995 and the amended statement of claim, the Respondents as Plaintiffs sued the Appellants principally and other related matters on 24/4/1995 for “A declaration that the 1st-5th Defendants are not members of or related to Adoku-Ogbo Family of Ewupe, Otta. Ogun State”. Several amendments characterized both the statements of claims and the statements of defence filed by both parties spanning to 2002.
The judgment of the trial Court was delivered on 25/5/2007, wherein the Court granted reliefs 3 and 6 and dismissed the rest of the Respondents’ claims. On appeal to the lower Court, Ibadan division, the appeal was allowed, and in affirming the judgment of the trial Court, the lower Court granted reliefs (b) and (c), which the trial Court granted in part. The Appellants have now appealed to this Court with a distilled issue for determination thus:
Whether the Court of Appeal had jurisdiction to sit on an appeal that emanated from the judgment delivered on the 25th day of May, 2007, some being the decision that originated from the writ of summons filed in Suit No. HCT/72/1995, which was signed by the law office of Chief Toyer Coker & Co.
The Respondents on the other hand sought for determination:
Whether in view of the peculiar facts of this case in respect of the originating processes, the Court of trial and the Court below did not have the jurisdiction to adjudicate on the matter.
It is apparent and ex facie that the originating process, the General Writ of Summons contained at page 2 of the record was issued and initialed or signed by “Chief Coker & Co.”
The substantive law touching on the issue of nullity of signing a legal process by a law firm is found in both Sections 2(1) and 24 of the Legal Practitioners Act. Section 2(1) of the Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990, provides that: “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.” Similarly, Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be “a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.” The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner, he must have his name in the roll, otherwise he cannot engage in any form of legal practice in Nigeria. See Per ONNOGHEN, J.S.C. in OKAFOR & ORS V. NWEKE & ORS (2007) LPELR-2412(SC) (PP. 10-11, PARAS. D-A).
The Writ of Summons in this suit filed and signed by “Chief Coker & Co.” is substantially and fundamentally defective to give the general proceedings any life. I am satisfied with the legal exegesis my learned brother, Per NWEZE, J.S.C. made in SALAMI V. MUSE (2019) LPELR-47038 (SC) (PP 8-19, PARA. B) while he relied on FIRST BANK OF NIGERIA PLC & ORS V MAIWADA AND ORS [2012] 5 SC (PT. 111) 1 and sundry authorities. This equally abundantly represents the position of the law on this matter. He expatiated thus:
…the issue of jurisdiction constitutes an exception to this general principle for it…could be raised for the first time before an appellate Court, with or without leave…it can never be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration…Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so… Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may ultimately amount to a nullity…in… FBN Plc and Anor v Alhaji Salman Maiwada (supra)], an eminent panel of seven distinguished Justices of this Court, unanimously, endorsed the Court’s earlier decision. Thus, the position is that…it is now settled that all Court processes…must be signed in the manner as prescribed by the Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court process signed in the business names of a firm’s name…having been rendered incurably defective ab initio are liable to be struck out…But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature…One should not talk of technicality when a substantive provision of the law is rightly invoked.
My learned brother, NWALI SYLVESTER NGWUTA, J.S.C., has settled this matter and I concur with his reasoning and conclusion. Consequently, this appeal is allowed and the proceedings of the trial and lower Courts are but a nullity.
EJEMBI EKO, J.S.C. (DISSENTING): At the trial High Court of Ogun State, the Appellants herein were the defendants. The Plaintiffs at the trial Court are the Respondents herein, the trial High Court upon hearing the matter on the pleadings duly filed and exchanged, and evidence from both parties entered judgment in favour of the Appellants herein, as the defendants, the Plaintiffs, the Respondents herein, successfully appealed the decision. The Court of Appeal (Coram: Mshelia, Fasanmi and Ikyegh, JJCA) on 30th March, 2012 reversed the judgment of the trial Court, and in its stead entered its judgment in favour of the Respondents herein.
On 5th April, 2012 the Appellants lodged their appeal to this Court on a sole ground complaining to wit –
The lower Court is jurisdictionally incompetent to hear the appeal as the case was not initiated by due process of law at the trial Court.
PARTICULARS OF ERROR
1. The writ of summons in this case was not properly issued.
2. The action was not properly initiated
3. The writ of summons filed in this case was issued by CHIEF TOYE COKER Co.
4. CHIEF YOYE COKER & Co. is not a not a juristic person.
The relief the Appellant sought from this Court is –
An Order of this Honourable Court allowing the appeal and striking out the case for want of jurisdiction.
The Notice of Appeal, at pages 474 – 476 of the Record, was filed as of right.
The issue raised in the sole ground, which apparently is a preliminary objection to the competence of the suit of the Plaintiffs at the trial Court, was not raised either at the trial Court or the lower Court. Therefore, Mr. S.A. Sani of Counsel, who settled the Notice of Appeal, was clearly misleading this Court when in paragraph 1 of the Notice of Appeal he asserted that “Defendants/Applicants being dissatisfied with the decision in the judgment of the Court of Appeal dated the 30th day of March, 2012 – doth hereby appeal as of right to this Court “on the grounds set out in paragraph 3”. The miserable lie told by the Appellant’s Counsel is the suggestion that apparent Preliminary Objection was an issue before the lower Court and the lower Court, in its judgment, decided on it. I repeat: “this Preliminary Objection” was not at all raised against the competence of the suit qua the Writ of Summons at pages 10 – 19 of the Record.
The Appellants herein, as defendants, entered unconditional appearance in the action. Thereafter, on 20th November, 2012 by way of demurrer, they filed a motion on notice wherein they prayed for an order of the trial Court –
Dismissing this suit as being an abuse of Court process on the ground that it is an unnecessary duplication of suits Nos. HCT/109/94 and HCT/31/93 which are pending at other High Court in this Judicial Division.
They brought the application, which in substance, is a notice of Preliminary Objection, under Order 47 Rule 1 of the Ogun State High Court (Civil Procedure) Rules, 1987.
The sole ground of appeal raises the complaint that “the lower Court is jurisdictionally incompetent to hear the appeal as the case was not initiated by due of process of law at the trial Court”. There are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried etc.: AG. KWARA STATE & ANOR. v. ADEYEMO & ORS. (2016) LPELR -4114 (SC) where Rhodes-Vivour, J.S.C., re-stated the distinction between the two thus: that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution; that “no litigant can confer jurisdiction on the Court”, and it cannot be waived. And, on the other hand, that a party can waive any aspect of procedural jurisdiction by acquiescing in the defect. See also NDAYAKO v. DANTORO (2004) 13 NWLR (pt. 889) 187 at where Edozie, J.S.C. pointedly stated:
It is noteworthy that a distinction must be drawn between two types of jurisdiction, viz: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the Court where the constitution or statute … says the Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without: RE ORR v. ERWING (1883) 22 Ch.D 456, 463 —.
In the case of NOIBI v. FIKOLATI (1987) 1 NWLR (pt. 52) 619 at 632, it was held that where a party consented to wrong procedure at the trial Court and infact suffered no injustice, it would be too late to complain on appeal that a wrong procedure was adopted. Thus, where an action was commenced by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See also NASCO MANAGEMENT SERVICES LTD v. A.N. AMAKU TRANSPORT LTD (1999) 1 NWLR (pt. 588) 576 at 588.
My lords, I think it is too late in the day for the Appellants herein to be heard complaining about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence; and in respect of which the trial Court gave them judgment. This is almost about the same situation in HERITAGE BANK LTD v. BENTWORTH FINANCE (NIG.) LTD. (2018) 3 NWLR (pt. 1625) 420 (SC) where a defendant, who acquiescing in the defective statement of claim, joined issues thereto by filing statement of defence and participating in the trial up to judgment, at the trial Court and the Court of Appeal surfaced before this Court to contend (for the first time) that the defect in the statement of claim vitiated the proceedings. His prayer that the proceedings be set aside was denied, as doing so was clearly inequitable and unconscionable.
The Courts these days lean in favour of doing substantial justice in a case rather than hanging on crass technicality to re-open a procedural irregularity that had been waived by the party who could or should have timeously raised it: NNEJI & ORS. v. CHUKWU & ORS. (1988) 6 SCNJ 132 at 138 – 140; ATANDA v. AJANI (1989) 3 NWLR (pt. 111) 511, at 545; NDAYAKO & ORS. v. DANTORO & ORS. (supra).
A defendant, who though aware of any defect in the writ of summons, still took steps in the proceedings is estopped from subsequently raising the issue of the defect: NWOYE v. NIGERIA ROAD CONSTRUCTION LTD (1966) NMLR 254; SADIKU OBATEMI SAMUEL v. SAMUEL ORISANWO (1967) NMLR 27; in NIGERIA PRODUCE MARKETING Co. LTD v. COMPAGNE NOGU D’IMPORTATION (1971) 1 NMLR 223 the defendant who, submitting to the jurisdiction of the trial Court, had asked for a date to file pleadings (as these Appellants, as defendants, did at the trial Court) was held to have “taken steps” in the proceedings and thereby estopped from complaining subsequently about the defect in the writ. On the contrary, a defendant (unlike the defendants/Appellants herein) who entered “conditional appearance” or was appearing in protest would not be estopped or barred from subsequently raising the issue of any defect on the writ: AGUDA: PRACTICE & PROCEDURE IN SUPREME COURT, etc. (1988) paragraphs 3.121 – 3.122 at page 44.
This Court, in J.S. SONUGA & ORS. v. KEHINDE ANADEIN & ORS. (1967) 1 ALL NLR 91; (1967) NMLR 77 stated poignantly that it is inequitable for a defendant, who not objecting to a defective process, accepted it and acted on it; thus, leading the Plaintiff to believe that the defence had no objection hereto (as it does no harm to him), to subsequently raise it. The Court of justice will hold such conduct to be inequitable and unconscionable. Equity acts in personam. The doctrine of estoppel by conduct, now codified as Section 169 of the Evidence Act, 2011 is all about this. Section 169 provides –
169. When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
At the risk of repetition: a defendant who consented to a wrong procedure at the trial cannot, should not, be heard on appeal to say that the wrong procedure was used: COLONY DEV. BOARD v. KAMSON & ORS (1955) 21 NLR 75; CFAO v. ONITSHA INDUSTRIES LTD (1932) 11 NLR 102; G.A. AKHIWU v. THE PRINCIPAL LOTTERIES OFFICER, etc. (1972) 1 ALL NLR (pt. 1) 229. The principle has been as old as that. And it has, for that long, been with us. In OKAFOR v. NWEKE (2007) ALL FWLR (pt. 368) 1016, the objection to the defect (that the motion paper was signed by a firm of lawyers – J.I.C. OKOLO, SAN & Co) was taken up timeously without fresh or further steps taken by the respondent upon his becoming aware of the defect. That alone distinguishes OKAFOR v. NWEKE (ibid) from the instant case. Again, in OKAFOR v. NWEKE (ibid) the objection was not by way of a notice or ground of appeal. The right to raise a plea as to any defect in the originating process, be it a charge in a criminal proceeding or a writ of summons in civil proceeding, is not a right to be taken up first on appeal as a ground appeal, but only by way of preliminary objection at the trial: EDU v. C.O.P (1952) 14 WACA 163.
Preliminary objection and appeal process are governed by two different and mutually inconsistent procedures. While the essence of preliminary objection is to terminate the suit or appeal in limine: appeal is by way of review or rehearing. For the purpose of the instant matter the High Court (Civil Procedure) Rule, 1987 of Ogun State had made adequate provisions for the defendant to challenge or object to any defective process not taken out in accordance with its due process. Therefore, any objection to the competence of the originating process of the trial High Court must be in accordance with the Rules of procedure of the trial Court. The Rules of appeal to this Court are governed by the rules of procedures made for this Court alone. Nothing in either the Supreme Court Act or the Supreme Court Rules permits the appellants herein to formulate their preliminary objection to the competence of the suit or the processes therein at the trial Court in the Supreme Court by way of a ground of appeal, as the instant.
In any case, by virtue of Section 233(1) of the 1999 Constitution, as amended, the Supreme Court has no jurisdiction to entertain appeals from any High Court. It also has no jurisdiction to entertain preliminary objection or objections to the competence of either the action or any process therein at the High Court.
Order 2 Rule 9(1) of the Supreme Court Rules – providing for preliminary objection to the hearing of an appeal, does not avail the Appellants herein. So also Order 2 Rule 29(1) – providing for an application to strike out or set aside a process for non-compliance with the Supreme Court Rules. As the Litigant at the Supreme Court cannot invoke the Supreme Court Rules to set aside or strike out any process filed at the trial Court; so also, the Supreme Court cannot be invited to usurp the functions of the High Court except the matter comes to it by way of appeal through and from the intermediate Court.
The issue canvassed in the sole ground of appeal is a fresh point of law on the procedural jurisdiction of the trial Court. It is a fresh issue. It was neither raised at nor considered by the trial Court and the Court of Appeal. Being a fresh issue, it can only be raised at this Court with leave of Court: ISA BELLO v. FRN (2018} LPELR 44465 (SC) 6. This appeal, raising a fresh issue neither raised at nor considered by the two Courts, which was filed as of right, is incompetent: A.I.C. LTD. v. NNPC (2005) 5 SCNJ 316; A.G. ADAMAWA STATE & ORS. v. JONAH JAURO WARE & ORS. (2006) 4 NWLR (pt. 970) 399. It is accordingly struck out. The exception to this rule is when the jurisdictional issue is one of substantive jurisdiction as was the case in GAJI & ORS. v. PAYE (2003) 7 SCM 55 cited by the Appellants. In that case the issue was whether Sections 39 & 41 of the Land Use Act had not ousted the jurisdiction of the High Court over land in non-urban area. DURWODE v. THE STATE (2000) 12 SC (pt. 1) 1 is also about the substantive jurisdiction the trial Court had to entertain the case. These two cases do not avail the Appellant herein – the issue in the appeal being one of procedural jurisdiction.
By virtue, my Lords, of Section 233(2) & (3) of the Constitution appeal does not lie to this Court as of right on issues of fact or mixed law and fact. The question: whether Chief Toye Coker & Co. is a natural person or a juristic persona is one of fact, provable and proven only by empirical evidence – viva voice or affidavit evidence. Apart from there being no such evidence on the Record before us; the issue raised by the sole ground of appeal is one of mixed law and facts. It is trite that this Court lacks jurisdiction to entertain issues of fact or mixed law and fact unless leave was first sought and obtained previously for such issues to be raised. This appeal not backed by law is an exercise in abuse of Court’s process: R-BENKAY (NIG) LTD v. CADBURY (NIG) LTD (2012) S NWLR (pt. 1306) 536. The writ of summons, in accordance with the High Court (Civil Procedure) Rules of Ogun State, was on 24th April, 1995, was issued by the Principal Registrar of the High Court in terms of the claims of the Plaintiffs endorsed on the said writ of summons. One Chief Toye Coker & Co. of Counsel for Plaintiffs signed the particulars of claims endorsed on the writ. No provision of the extant High Court (Civil Procedure) Rules authorized either the plaintiffs or their Counsel to issue writ of summons commanding the defendant(s) to enter appearance to the suit of the plaintiff(s). This particular writ of summons having been duly issued by the authorised registrar or officer of the trial Court was entitled to presumption of regularity: Sections 151(1) & 168(1) respectively of the 1990 and 2011 Evidence Act. Worthy of note is the fact that the Appellants do not attack the authority of the Principal Registrar to issue the writ of summons pursuant to the provisions of the High Court (Civil Procedure) Rules empowering or authorizing him to so do. Nor had the action of the Principal Registrar, issuing the writ of summons and endorsing thereon the particulars of claim signed by Chief Toye Coker & Co., been attacked.
Under the extant Rules of Ogun State High Court (in pari materia with Order 25 Rule 20 of the then Uniform Civil Procedure Rules) the High Court was empowered to “amend any matter in any indorsement or pleading” at any stage.
“This may not necessarily involve the striking out of the entire pleadings. Where the offending matter stands on its own and is a severable part of the pleading, the order to strike out will be confined to the part of the pleadings containing it -” per Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Ed. p. 435 relying on BLAKE v. ALBION LIFE ASSURANCE Co. (1876} 45 LICP 663. I had earlier demonstrated that it is not the writ of summons, issued by the Principal Registrar, that the objection is directed against but the particulars of claim endorsed thereon. English authorities abound say that the Court generally will grant leave to amend such defect, rather than give a wholesome order striking out the entire suit: STEEDS v. S. 22 Q.B.D. p. 542; REID v. HOOLEY, 13 T.I.R. 398, etc. -see SUPREME COURT PRACTICE (The White Bokk – UK), 1979 Vol. 1 Para. 18/19/4 p. 313. A decision on this is interlocutory (HUNT v. ALLIED BAKERIES LTD (1956) 1 WLR 1326 CA; RE PAGE (1910) 1 Ch. 489), which by virtue of Section 24(2)(a) of the Court of Appeal Act, would have been appealable within 14 days from the date of the ruling or decision. The Appellants skipped all these steps only to lay the ambush by this purported appeal.
Appeal struck out. Costs at N2,000,000.00 to the Respondents jointly and/or severally against the Appellants jointly and/or severally.
Appearances:
MR. S. A. SANNI For Appellant(s)
MR. J. T. SHOTIRANE, WITH HIM, J. T. KOMOLAFE, ESQ. For Respondent(s)
