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AKAMOBI & ORS v. DIKE (2022)

AKAMOBI & ORS v. DIKE

(2022)LCN/16141(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 22, 2022

CA/L/436/2015

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1. CHIEF EMMANUEL C. M. AKAMOBI 2. SIR. NNAMDI OBI 3. JOSEPH OJIKA 4. EMMANUEL ADIMORA 5. PETER MBONU 6. H. O. IJEZIE 7. CHRISTOPHER OKOLI 8. ISRAEL EMEHIOFOR 9. CHIKE UMEH 10. VEN OLWUGHLU (For Themselves And On Behalf Of All The Interested Parties Being Grand Patrons, Patrons And Trustees Of Osumenyi Town Assembly, Lagos.) APPELANT(S)

And

DAVID DIKE (For Himself And On Behalf Of The Executive Members Of Osumenyi Town Assembly (O.T.A)) RESPONDENT(S)

 

RATIO

WHETHER OR NOT A LAW FIRM CAN SIGN LETTERS AND DOCUMENTS

It has been stated, repeatedly in a legion of judicial authorities, that a law firm, run and operated by lawyers, cannot, by itself, assume the functions of the lawyers that operate the firm and begin to sign letters and documents (if at all the law firm can do so) in its name without a disclosure of the name of the legal practitioner, duly registered to practice law in Nigeria, as the signatory to the particular process signed. See the case of AGROVET SINCHO PHARM LTD. v. ESTATE OF ENGR. DAHIRU (2013) LPELR-20364 (CA). There can be no argument that a law firm cannot claim to qualify as a legal Practitioner, registered with Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See also BELLO v. ADAMU (2011) LPELR 3722 (CA). Also in the case of SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court said:
“It has been argued that COLE v. MATTINS (Supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it, because in law a business name is not accorded legal personality… it is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, ADEWALE ADESOKAN & CO. is not a legal person. It can only function as – ADEWALE ADESOKAN (Trading under the name and style of ADEWALE ADESOKAN & CO.).” PER UMAR, J.CA.

WHETHER OR NOT THE COURT OF APPEAL MUST PRONOUNCE ON ALL ISSUES PUT BEFORE IT BY PARTIES

​I am not oblivious of the principle of law to the effect that this Court, as an intermediate Court of Appeal is enjoined to consider and pronounce on all the issues put before it by the parties. However, there are circumstances in which this Court can dispense with doing this. The circumstances are (i) when an order of retrial is considered desirable or necessary; and (ii) where the judgment appealed against is considered a nullity. See SHASI v. SMITH (2010) 6 WRN 39 at 68; UZUDA V. EBIGAH (2009) 48 WRN 1, (2009) ALL FWLR (PT. 493). PER UMAR, J.CA.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellants who said that they are interested parties being Grand Patrons, Patrons and Trustees of Osumenyi Town Assembly (O.T.A) Lagos branch, against the decision of the Federal High Court, Lagos Division as contained in the Ruling of M.L. Shuaibu J. delivered on the 27th day of April 2006 in Suit No. FHC/L/270/2006.

BRIEF STATEMENT OF FACTS
On the 3rd of April 2006, one Peter Nwachukwu Akunne as Plaintiff brought an action in a representative capacity, for himself and on behalf of Trustees of Osumenyi Town Assembly (O.T.A) against the Respondent as Defendant in a representative capacity for himself and on behalf of all the executive members of Osumenyi Town Assembly (O.T.A) Lagos Branch. The action was by way of Originating Summons supported by Affidavit deposed to by the said Peter Nwachukwu Akunne. On the face of the Originating Summons, the Plaintiff prayed for the following reliefs:
1. “An order of the Honourable Court nullifying the appointment of Patrons, Grand Patrons and Trustees of Osumenyi Town Assembly (OTA) Lagos Branch as improper, illegal, null and void as it is inconsistent with the provision of the Constitution and Bye-Laws of Osumenyi Town Assembly revised 2001.
2. An order restraining the purported Patrons, Grand Patrons and Trustees from parading themselves as such or carrying out any act, activities or decision as the Patrons, Grand Patrons and Trustees of Osumenyi Town Assembly (OTA) Lagos Branch.
3. An order restraining the Defendant from handing over the affairs of Osumenyi Town Assembly (OTA) Lagos Branch to any person whosoever except properly elected persons in an election conducted by well Constituted Electoral Committee of Osumenyi Town Assembly (OTA) Lagos Branch pending the determination of the Summons on Notice filed in this suit.”

At the hearing of suit, the counsel for the Defendant did not defend the suit and registered no objection to the granting of the application when it was moved by counsel for the Plaintiff. (See page 81 of the record of appeal). The reliefs sought on the face of the originating summons was therefore granted.

The Appellants as interested parties approached the Court below via an application dated 9th December, 2006 for an order setting aside the judgment delivered on 27th April, 2006 on the jurisdictional grounds amongst others. However, the trial Court on 7th July, 2008 dismissed the application of the Appellants as interested party in the following terms:
“I find nothing compelling enough for me to take a weighty step varying or setting aside the terms of said order…
The motion by the so called persons affected is dismissed and misconceived.”

The Appellants being dissatisfied with the decision of M.L. Shuaibu J., delivered on the 27th day of April, 2006 obtained the leave of this Court and filed an Amended Notice of Appeal on 13th of September, 2017.

In obedience to the rules of this Court, parties filed and exchanged their respective briefs of argument. The Appellants’ brief was filed on 5th October, 2021 and same was settled by ADEMOLA EKUNDAYO ESQ., who for the determination of the appeal distilled three issues as follows:
1. “Whether the lower Court has jurisdiction to entertain this matter. (Ground 3)
2. Whether the Court ought to and can set aside the ruling of the trial Court obtained by suppression and misrepresentation of facts (Ground 1).
3. Whether the trial Court can make an order against the Appellant interested parties who were not parties to the suit. (Ground 2).

GODWIN C. ANYAFULU ESQ., settled the Respondent’s brief filed on 18th October, 2021. Counsel for the Respondent distilled two issues for the determination of the appeal to wit:
1. “Whether the Originating Summons that commended this suit is competent, if so, whether the fact that Osumenyi Town Assembly (O.T.A) Lagos is not registered under Part “C” of Companies and Allied Matters Act separately but the parent body – Osumenyi Town Assembly (O.T.A) is duly registered under the said Act will vitiate the jurisdictional power of the Federal High Court under Section 251(1) (e) of the 1999 constitution in an action by the Trustees of the Assembly seeking the nullification of appointments made by the branch executive for being inconsistent with the Constitution and Bye-Laws of the Assembly. (ground 3 of the ground of appeal)
2. Whether the Appellants who were not named parties in the suit prosecuted and defended in a representative capacity at the lower Court are bound by the decision of the lower Court reached by the consent of named parties to the suit. (grounds 1 and 2 of the ground of appeal)

Before delving into the issues above, it is imperative to state that the Respondent filed a notice of preliminary objection on 12th March, 2021. The objection is brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2016.

The Appellants’ counsel did not deem it fit to file a reply to the objection. However, I shall proceed to consider the arguments and submissions in support of the objection and thereafter resolve same on its merits as the law demands.

The crux of the objection is that none of the grounds of appeal as contained in the Amended Notice of Appeal filed on 5th October, 2021, inclusive of their particulars relate to the ruling of the lower Court delivered on the 27th of April, 2006 by M.L. Shuaibu J., the subject matter of this appeal.

Counsel referred to Order 7 Rules 2(1), 2(2) and 2(3) of the Court of Appeal Rules 2016 and argued that grounds of appeal are complaints against a finding, or decision of the trial Court. That a close look at the grounds of appeal which are contained in the Amended Notice of Appeal filed on 5th October, 2021, and the judgment appealed against will show that the grounds of appeal and their particulars did not emanate from the judgment.

Counsel therefore urged this Court to strike out grounds 1 – 3 as contained in the Amended Notice of Appeal filed on 5th October, 2021.

RESOLUTION OF PRELIMINARY OBJECTION
The law is trite that the ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against to an appellate Court. The ground of appeal also gives information of the precise nature of an appellant’s complaint and ensures fairness to the other side: See SARHUNA V. LAGGA (2009) ALL FWLR (PT. 455) 1617 at 1636 (S.C.).

To determine whether the Appellants’ grounds of appeal attack the judgment of the trial Court, it is imperative to analyze the said grounds vis-a-vis the decision appealed against. In the Amended Notice of Appeal filed on 5th October, 2021, the Appellants raised three grounds of appeal as follows:
“GROUNDS OF APPEAL
(1) The judgment of the trial Court was obtained by fraud, misrepresentation and suppression of facts.
PARTICULARS OF ERROR
i. The Plaintiff at the trial Court fraudulently claimed to have instituted the suit on behalf of the trustees while the Appellants/Applicants who were supposed to be trustees of the Osumenyi Town Assembly were not informed neither were they aware of the suit.
ii. The Appellants/interested parties did not consent or agree to any consent judgment entered against the Respondent.
iii. The Counsel that represented the Plaintiff and Defendant are from the same chambers.
(2) The learned trial judge erred in law by making an order against the Appellants/interested parties who were not parties to the suit.
PARTICULARS OF ERROR
i. The order of the Court in the consent judgment was against the Appellants/Interested parties who are the Grand Patron and Patrons of Osumenyi Town Assembly, Lagos Branch.
ii. The Appellant/Interested parties did not consent to any judgment entered by the learned trial judge.
(3) The trial Court lack jurisdiction to entertain the matter.
PARTICULARS OF ERROR
(i) Osumenyi Town Assembly, Lagos Branch is not registered under Part C of CAMA neither was it registered with Corporate Affairs Commission at all.
(ii) Federal High Court has no jurisdiction to entertain the matter.
(iii) The grand patron and patrons been referred to are not that of Osumenyi Town Assembly Registered under CAMA.
(iv) The matter is incompetent before the lower Court as the originating process was not signed by a legal practitioner as defined by the Legal Practitioners’ Act.
(v) The originating process was signed by a law firm.”

From the foregoing, it can be seen that grounds 2 and 3 are grounds predicated on jurisdiction. Although the jurisdictional competence of the trial Court was not an issue considered by the trial Court, however, the grounds being jurisdictional in nature can be raised in this Court for the first time even without leave. Ground 2 complains about the jurisdictional competence of the trial Court to make orders against persons who were not made parties to the suit while ground 3 raises the issue of the suit not being commenced by due process of law; to wit non-signing of the originating summons by a person known to law and also that the subject matter of the suit is not one to be commenced in the Federal High Court.

Grounds 2 and 3 being jurisdictional grounds are competent and shall be considered in the determination of this appeal.

The issue of jurisdiction is very fundamental and that it is the very basis upon which a Court tries a case. The law is trite that the lack of jurisdiction robs a Court of the competence to hear and decide a matter and can be raised at any time be it at the Court of Appeal or Supreme Court. See PETROJESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (pt. 244) 675; 693 E-F.

As for ground 1 of the notice of appeal which complains about the judgment of the trial Court being obtained by fraud, misrepresentation and suppression of facts, I am of the view that this issue not being jurisdictional and having not been considered at trial, the Appellants were duty bound to seek the leave of this Court to raise fresh issues on appeal. In the absence of such leave first had and obtained, I am inclined to agree with the Respondent’s counsel that the ground of appeal is incompetent and liable to be struck out. Ground 1 of the amended notice of appeal is hereby struck out. Consequently, issue no.2 distilled from the said ground of appeal is hereby struck out too.

It is also important to say one or two words regarding the other limb of the objection. Counsel for the Respondent submitted that since the Appellants’ application of 8th December, 2006 praying the trial Court to set aside its own judgment was dismissed and the ruling in that regard was not set aside on appeal, the decision would remain binding thus making this appeal incompetent.
It is on record that the Appellants before initiating this appeal approached the trial Court to have the decision which is the subject of this appeal set aside. However, the trial Court in its ruling refused the application and struck same out. Now the question at this stage is what are the options opened to the Appellants after their frantic effort to have the trial Court set aside its own decision proved futile?
​I am of the firm view that the Appellants have two options to remedy their judicial predicament. One is to appeal against the ruling of the trial Court refusing to set aside its own judgment and the second is to appeal against the main judgment sought to be set aside but which was not.
To say that the Appellants cannot file this appeal to register their common grievance against the judgment delivered by M.L. Shaibu J. because of the subsisting ruling of C.E Archibong J. of the same Court is like saying that the Appellants are perpetually foreclosed from exercising their constitutionally guaranteed right of appeal against the judgment. The Appellants have done nothing strange in law to have elected to attack the main substratum of the suit which is the main judgment rather than appeal against the ruling refusing their motion to have the judgment appealed against in the instant appeal set aside.

Flowing from the heels of the above, the objection succeeds only to the extent of the incompetence of ground 1 of the notice of appeal. Having held earlier that grounds 2 and 3, being jurisdictional grounds can be raised at any time on appeal, I hold that the appeal can be competently heard on grounds 2 and 3 of the amended notice of appeal.

ARGUMENTS AND SUBMISSIONS OF COUNSEL
On issue no.1, counsel for the Appellants submitted that the Originating Summons which originated this suit in the lower Court at pages 1-2 of the record was issued by G.C. ANYAFULU & ASSOCIATES and not signed by a lawyer known to law. Counsel referred to Sections 2 & 24 of the Legal Practitioner’s Act and the case of OKAFOR V NWEKE & ORS (2007) & Ors (2007) 3 SC Pt. 11 54 at 62-63.

On the effect of a Court process issued by a statutorily non-recognizable legal practitioner, counsel referred to ALAWIYE V. OGUNSANYA (2012) 12 SC (PT.111), 1 at 38-41; FBN V. MAIWADA & ORS (2012) 5 S.C (PT111) 1.

Premised on the foregoing, counsel urged this Court to strike out the suit for lack of jurisdiction.

​In response to the arguments and submissions of counsel for the Appellants on the competence of the originating summons, counsel for the Respondent submitted that the Originating Summons is in substantial compliance with form 53 of Appendix 6, of the Federal High Court Civil Procedure Rules 2000 and that on the 2nd page of the Originating Summons at page 3 of the record of appeal, it is stated that the summons was taken out by H. U Odiari Legal Practitioner for the Plaintiff which shows the legal practitioner that took it out for the plaintiff and the legal practitioner’s name is printed on the summons. On the definition of the word signature, counsel referred the Court to KEYSTONE BANK LTD V. J. O. A & S (NIG) LTD (2015) 1 NWLR (PT. 1439) 98 AT 110–111, PARAGRAPHS H–A. Counsel for the Respondent submitted also that assuming but without conceding that the Originating Summons was not signed or authenticated by a legal practitioner known to law, such non-signing is of no effect to vitiate the proceedings. Reliance was placed on S.P.D.C.N LTD VS. GBENEYEI (2019) 13 NWLR (PT. 1689) 272 AT 293–294 PARAGRAPHS H–D.

RESOLUTION OF ISSUE NO.1
It has been stated, repeatedly in a legion of judicial authorities, that a law firm, run and operated by lawyers, cannot, by itself, assume the functions of the lawyers that operate the firm and begin to sign letters and documents (if at all the law firm can do so) in its name without a disclosure of the name of the legal practitioner, duly registered to practice law in Nigeria, as the signatory to the particular process signed. See the case of AGROVET SINCHO PHARM LTD. v. ESTATE OF ENGR. DAHIRU (2013) LPELR-20364 (CA). There can be no argument that a law firm cannot claim to qualify as a legal Practitioner, registered with Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See also BELLO v. ADAMU (2011) LPELR 3722 (CA). Also in the case of SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court said:
“It has been argued that COLE v. MATTINS (Supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it, because in law a business name is not accorded legal personality… it is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, ADEWALE ADESOKAN & CO. is not a legal person. It can only function as – ADEWALE ADESOKAN (Trading under the name and style of ADEWALE ADESOKAN & CO.).”
Learned counsel for the respondent cited: HERITAGE BANK LTD. V. BENTWORTH FIN. (NIG) LTD and held that:
“I​n spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of Legal Practitioners, the appellant as defendant, condoned the defective process. They participated in the proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial Court, based on the evidence elicited from the statement of claim, was delivered without objection. Even at the Court of Appeal no issue was made out of the alleged defective statement of claim. The Appellant as the defendant, had clearly condoned the defective statement of claim and waived his right to the defective process. The right of the defence to object to the irregularity ex facie the statement of claim is a waivable right, being a private right.”
However, in AJIBODE & ORS V. GBADAMOSI & ORS (2021) 7 NWLR (Pt. 1776) 475, the Supreme Court in a split decision of 4:1 with Ngwuta, JSC (of blessed memory) reading the leading judgment, Okoro, Nweze, Abba Aji, JJSC concurring and Eko, JSC (dissenting) held as follows:
“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 the proceedings which are void.
My noble Lords, I am not unaware of contrary decision 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 v. Mutunci (Nig) Ltd. (2012) 6 NWLR (Pt. 1297) 487 CA and Heritage Bank Ltd. V. 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 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.”
The decision of the Supreme Court above is in tandem with its earlier decisions in OKAFOR V. NWEKE (Supra); SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, which were decided in 2007 and 2011 respectively.
Recently, this Court was faced with a similar situation. My Lord Otisi, JCA, the erudite jurist who wrote the lead judgment and concurred by myself and Banjoko, JCA in case of WEMA BANK PLC vs. (1) TOKELAT FISHING INDUSTRIES, LTD (2) WEMA SECURITIES & FINANCE, PLC
​Judgment delivered on 10th day of February 2022 in Appeal No. CA/L/1169/2017, my lord Otisi JCA after a thorough and painstaking analysis of the decision of this Court and Apex Court concluded that: “It is important to note that the decision of the Apex Court in FIRST BANK OF NIG. PLC vs. MAIWADA PLC was a decision of Supreme Court sitting as its full Court. The reason for which full Court was empaneled was stated per Fabiyi JSC thus page 3 of the E-Report:
“It is important to note that the decision of the Apex Court in First Bank of Nigeria Plc. V. Maiwada (Supra), was a decision of the Supreme Court sitting as its full Court. The reason for which the full Court was empaneled was stated, per Fabiyi, JSC thus, page 3 of the E-Report:
“The core issue in my considered opinion is –whether a Court process not personally signed by a legal practitioner duly registered in the roll of this Court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.
Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full Court. A host of amicus curiae got invitation to address the Court on the issue.”
​In order words, it was to avoid confusion and discordant judicial pronouncements on the competence or validity of a Court process not personally signed by a legal practitioner duly registered in the roll of the Supreme Court as provided in the Legal Practitioners Act that the Supreme Court sitting as a full Court was empaneled.
In this regard therefore, and with utmost respect, it is my humble opinion that the decisions in Heritage bank Ltd v Bentworth Finance (Nig.) Ltd (supra) in 2018, and in Bakari v. Ogundipe & Ors (supra) in 2020, which were not decisions of the Supreme Court sitting as a full Court, cannot be said to represent the extant position of the law on this issue. Therefore, the decision in Okafor v Nweke (supra), duly affirmed in FBN v Maiwada (supra), still represents law”.
The Originating Summons which was used in initiating the suit culminating in the instant appeal, a legal process was signed by “G.C. ANYAFULU & ASSOCIATES”, having not disclosed the name of a legal Practitioner, known to law, as the signatory, remains a worthless tissue of paper which could not have invoked the jurisdiction of the trial Court to consider the Originating summons.
A look at the originating summons will reveal that the process was signed by “G.C ANYAFULU & ASSOCIATES”. The legal practitioner who signed the processes was not indefinable as required by legal practitioners’ Act; and in line with the pronouncements on the issue in OKAFOR vs. NWEKE.
Not done yet his Lordship Otisi, JCA while adopting the Supreme Court decisions OKAFOR vs. NWEKE SUPRA FBN vs. MAIWADA SUPRA took the candid view that:
“What is fundamental is that, where the relevant rules of Court provide that process must be signed by a legal practitioner, only a legal practitioner within the meaning of Section 2(1) and 24 of the Legal Practitioners Act, Law of the Federation 2004, can frank or sign the Court process. This simply means that the identity of the legal practitioner who signs a Court process, whether directly or on behalf of another, must be known. The identity of the legal practitioner must be explicitly evident.
It is irrelevant whether the process involved is an originating process such as a writ of summons or notice of appeal, or another process filed in the course of proceedings; Akinsanya & Anor v. Federal Mortgage Finance Ltd (Supra); GTB v. Innoson Nigeria Ltd (supra). As was recently (in 2021) restated in Ajibode & Ors v Gbadamosi & Ors (supra) at page 11 of the E-Report:
‘The locus classicus on this point, Okafor vs Nweke (Supra) …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.”

Without further ado, I resolve this issue in favour of the Appellants and against the Respondent. Consequently, the Originating Summons together with the proceedings and decision of the trial Court amount to a nullity and are therefore set aside.

​I am not oblivious of the principle of law to the effect that this Court, as an intermediate Court of Appeal is enjoined to consider and pronounce on all the issues put before it by the parties. However, there are circumstances in which this Court can dispense with doing this. The circumstances are (i) when an order of retrial is considered desirable or necessary; and (ii) where the judgment appealed against is considered a nullity. See SHASI v. SMITH (2010) 6 WRN 39 at 68; UZUDA V. EBIGAH (2009) 48 WRN 1, (2009) ALL FWLR (PT. 493)

Though I had earlier indicated that the Appellants distilled three issues for determination of this appeal while the Respondent distilled two issues, notwithstanding, I do not see the need to further dwell on the other issues raised by the Appellants given the success of the issue as to the incompetence of the originating summons used in initiating the suit at the trial Court which has resulted in the declaration of the proceedings and judgment delivered in this case by the lower Court a nullity. This stance clearly accords with the position of the law to the effect that once an appellate Court determines that there was no jurisdiction in the Court lower to it, the appellate Court too would have no jurisdiction of its own to exercise. See EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2007) ALL FWLR (PT. 351) 141.

​Premised on the foregoing, I find merit in this appeal. Same is hereby allowed, the decision of the Federal High Court, Lagos Division as contained in the judgment of M.L. Shuaibu J. delivered on the 27th day of April 2006 in Suit No. FHC/L/270/2006 is hereby set aside by reason of the fact that the suit culminating into the said judgment was not initiated by due process. Parties are to bear their respective cost.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Abubakar Sadiq Umar, JCA, made available to me, a copy of the judgment, now delivered, in draft form, in which this appeal has been allowed. I agree with, and adopt as mine the resolution of the issues in contention, as comprehensively done by my Learned Brother.

I also allow this appeal and abide by the orders made in the lead judgment.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my Learned Brother, ABUBAKAR SADIQ UMAR, JCA, and found that he resolved all the issues involved in this appeal properly.

Just as my Learned Brother carefully resolved the issue at hand in the lead judgment, the Apex Court in recent case of SKYPOWER EXPRESS AIRWAYS LTD VS UBA, PLC & ANOR (2022) LPELR-56590(SC) quoted HIS LORDSHIP Rhodes-Vivour, JSC in SLB Consortium Ltd. VS NNPC (2011) 9 NWLR (PART 1252) PAGE 317 that: – “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 Practitioners Act). All processes filed in Court are to be signed as follows: – First, the signature of counsel, which may be any contraption. Secondly, the name of Counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.” It is undeniable fact the Originating Summon was signed by way of a contraption as a signature, over, for and in the name of the law firm of “G.C ANYAFULU & ASSOCIATES.” This contraption or signature is not/does not represent the name of any identifiable person. This is an incurable defect which renders the whole proceeding thereon a nullity.

Based on the foregoing, I also allow this appeal and set aside the decision of the trial Court and sent back the case back for retrial.

Appearances:

Ademola Ekundayo with him, Adedamola Badej For Appellant(s)

C. Anyafula with him, Suliyat O. Shittu Mrs. For Respondent(s)