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ALAGBALA & ORS v. ADARALOYE & ORS (2022)

ALAGBALA & ORS v. ADARALOYE & ORS

(2022)LCN/16175(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, June 20, 2022

CA/L/880/2009

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. TAIWO ALAGBALA (HEAD OF OPONUWA FAMILY OF IKORODU) 2. FATAI BURAIMOH EGUNJOBIISOROSI 3. MUSIBAU IFENUSI 4. ALHAJI YAYA OGEDENGBE 5. ALHAJI GANIYU ARE ESUFOLUREN 6. LATIFU OREUGA 7. RAFIU OLUSUGBA 8. YEKINI KAOJURE (On Behalf Of Themselves And As Accredited Representatives Of Oponuwa Family Of Ikorodu) APPELANT(S)

And

1. KOLA IGARA ADARALOYE 2. AFOLABI OYEDELE ADARALOYE 3. KAYODE OMOTAYO IGARA ADARALOYE 4. ADEBOLA EYIDINA 5. ADETUTU BELLO EYIDINA 6. SEGUN EGUNJOBI RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURSIDICTION

Jurisdiction is simply the authority, which a Court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision. Reference is made to NATIONAL BANK VS SHOYOYE (1977) 5 SC 181. The importance of Jurisdiction in any adjudication cannot be over-emphasized. It is often described as the life wire of the adjudication process. Without it, every step taken in the case amounts to a nullity, no matter how well conducted and no matter how erudite the decision emanating therefrom. Reliance is placed on EUGENE OGBUJI & ANOR VS ORI AMADI (2022) LPELR-56591 (SC), UTIH VS ONOYIVWE (1991) 1 NWLR (PART 166) 206, SHITTA-BEY VS A.G. FEDERATION & ANOR (1998) 7 SC (PART 2) 121; (1998) LPELR-3055 (SC) AT 30-31 F-G, PETROJESSICA ENT LTD VS LEVENTIS TECHNICAL CO. LTD (1992) LPELR-2915 (SC) AT 23 E-F.
In UTIH VS ONOYIVWE (SUPRA), His Lordship, Bello CJN held:
“…Jurisdiction is like the blood that gives life to the survival of an action in a Court of Law and without Jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”
PER BANKJOKO, J.C.A.

THE MEANING OF A “LEGAL PRACTITIONER”

Now, Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004, provides thus: “2(1) 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. Section 24 of the Act provides thus: ‘In this Act, unless the context otherwise requires, the following expressions have the meanings assigned to them respectively, that is to say…. “Legal Practitioner” means a person entitled to 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 or Proceedings.’ The Apex Court has emphasized in many decisions that the Provisions of the law referred to above, are meant to protect the Legal Profession. They are to ensure that no person other than a person whose name is on the roll, signs legal documents. They are also to eliminate impersonators and fake lawyers from legal practice. See MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE & ORS VS ALHAJI ISIYAKU YAKUBU & ANOR (2013) ALL FWLR (PART 694) 23, (2013) 6 NWLR (PART 1351) 481, (2013) 1 SC 98 AT 114, FIRST BANK (NIG) PLC VS MAIWADA (2012) 5 SCNJ 1, (2012) LPELR -9713 (SC) 187, (2012) 9 SCM 14, (2012) 5 SC (PART III) 1 AT 22, (2013) ALL FWLR (PART 661) 1433, (2013) 5 NWLR (PART 1348) 444, SLB CONSORTIUM LTD VS N.N.P.C. (2011) ALL FWLR (PART 583) 1902. PER BANKJOKO, J.C.A.

FACTORS TO BE CONSIDERED FOR A COURT TO BE COMPETENT TO DETERMINE A MATTER
It is settled that a Court is competent when: 1) It is properly constituted as regards numbers and qualification of the members of the Bench and no member is disqualified for one reason or another; 2) The Subject Matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, 3) The Case comes before the Court, initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of any jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided: the defect is extrinsic to the adjudication. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR (PART 4) 587, (1962) 2 SCNLR 341 AT 348 PER BAIRAMIAN FJ, ATTORNEY-GENERAL, FEDERATION VS GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PART 618) 187, (1989) 5 SC (PART III) 59, (2001) FWLR (PART 32) 87.  PER BANKJOKO, J.C.A.

THE POSITION OF LAW ON A WRIT OF SUMMON

A Writ of Summon is an Originating Process. It has been described as the spinal cord of a Suit; the foundation upon which a Suit is based. In KIDA VS OGUNMOLA (2006) ALL FWLR (PART 327) 402, (2006) 13 NWLR (PART 997) 337, (2006) 6 SC 147 AT 152-153, His Lordship PER MUSDAPHER JSC (as he then was), held:
“The validity of the originating process in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.” See also OKARIKA VS SAMUEL (2013) ALL FWLR (PART 706) 484, (2013) 7 NWLR (PART 1352) 19, LPELR-SC.251/2005, DANIEL VS I.N.E.C. (2015) ALL FWLR (PART 789) 993, (2015) 9 NWLR (PART 1463) 113, (2015) 3-4 SC (PART III) 76.”  PER BANKJOKO, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM IS A SEPERATE CLAIM FROM A SUBSTANTIVE SUIT

It is trite that a Counter-Claim, although filed alongside a substantive Suit is a separate and independent claim. A Counter-Claim, to quote from Halsbury’s Laws of England (3rd ed.) Vol. 34, p.395, Paragraph 671, is -“A weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action.” Instead of suing separately, the defendant may insert his claim into the plaintiff’s suit under the label of Counter-Claim if it is of a kind, which by law he is entitled to raise and have disposed of in the plaintiff’s suit. KOLADE & ORS VS OGUNDOKUN (2017) LPELR-48001(SC), NSEFIK & ORS. VS MUNA & ORS (2014) ALL FWLR (PART 718) 845, (2014) 2 NWLR (PART 1390) 151, JERIC (NIG.) LTD VS UNION BANK OF NIGERIA PLC (2000) 15 NWLR (PART 691) 447, (2000) 12 SC (PART 11) 133, (2001) FWLR (PART 31) 2913. PER BANKJOKO, J.C.A.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Hon. Justice S. A. Onigbanjo of the Lagos State High Court, sitting at Lagos, delivered in SUIT NO: ID/2836/92 on the 19th Day of May, 2009, as seen on Pages 542-552 of the Record of Appeal. The Suit was initiated vide Writ of Summons and Statement of Claim filed on 9th November, 1992 as shown on Pages 1-5 of the Records of Appeal, the Original Statement of Defence is on Pages 6-9 of the Record of Appeal with a Reply to Statement of Defence by the Claimants on Pages 49-50.

The Suit at the lower Court was instituted by the Original Claimants headed by Chief Bakare Saka Abasopiti due to the wanton acts of destruction and alienation of portions of parcel of land belonging to the Appellants by the Respondents, led by the initial Defendant Emmanuel Taiwo Ayeni, who are a sub-branch of the larger Appellants’ family but allegedly constituted themselves into a dissident group. The Original Claimants all died so the Suit was continued at the lower Court by the present Appellants, who were substituted for the Deceased Original Claimants.

The Appellants (then Claimants) claimed for the following Reliefs:
“(a) A declaration that the farmland situate, lying and being at Ibelefu Igbo-Agbowa Village off Ibeshe Road, Ikorodu and Abule Oponuwa after Ogijo off Shagamu Road respectively belong to all the Eight (8) Branches of Ogunmolu (otherwise known as Oponuwa) as tenant-in-common under Yoruba Native Law and law.
(b) Ten Thousand Naira (N10,000.00) damages against the Defendants jointly and severally for wanton acts of destruction of the survey pillars buried on the boundaries of the farmland at Ibelefu Igbo-Agbowa Village off Ibeshe Road, Ikorodu.
(c) Injunction restraining the Defendants jointly and severally, their servants and/or privies from committing further acts of destruction on the said farmlands.
(d) An Order of partition of both farmland; namely-Ibelefu Igbo-Agbowa Village, Off Ibeshe Road and Oponuwa Village after Ogijo off Shagamu Road both in Ikorodu Local Government equally among the Eight (8) branches of Oponuwa Family.

After various Amendments by the parties, the Suit eventually went to full trial based on 3rd Further Amended Statement of Claim dated 7th November, 2005 which can be found on Pages 313-315 of the Record of Appeal and the 2nd Amended Statement of Defence filed 17th March, 2005 which can be found on Pages 226-230 of the Record of Appeal. The Judgment was delivered 19th Day of May, 2009.

The Appellants who are dissatisfied with the judgment therefore filed a Notice of Appeal dated 5th July, 2009 on the 8th June, 2009 as shown on Pages 555-558 of the Record of Appeal. Mr. Bolaji Idowu Orenga, the Original 7th Respondent in the appeal, was reported dead on the 14th February, 2011 and consequent upon this, an Application to withdraw the appeal against him was heard and his name was struck out as a party to the appeal. Hence, an Amended Notice of Appeal dated 30th March, 2011 was filed 20th April, 2015, on the basis of which this appeal flows.

The Extant Notice of Appeal contains Four (4) Grounds and the Appellants’ Brief of Arguments settled by OKUNOWO OLUFOLAHAN was dated 9th March, 2016 and filed 10th March, 2016. The Respondent’s brief filed 11th January, 2014, filed 14th January, 2014, was settled by KEHINDE OSIBONA.

In the Appellants’ brief, the Appellants raised the following issues for determination:
1. Whether upon a calm view of the Pleadings, Exhibits tendered, and evidence adduced by the parties at the trial, the learned trial Judge could be said to be right to have held that Co-ownership or Joint Ownership of the Farmland at Igbo-Agbowa, off Ibeshe Road Ikorodu shown on Exhibits K and R tendered at the trial by the Parties, was not proved by the Appellants.
2. Whether it was proper for the lower Court not to have refused judgment for the Respondents based on the glaring fraud on Exhibits H-H1O and L1-L16 tendered by the Respondents, which were documents made for the purposes of the case and which were recent happenings relied upon by the lower Court on the land.
3. Whether in the circumstances of this case, the Respondents whose damages for trespass was abandoned could still be awarded such without proof of same by the trial Court.
4. Whether the learned Honourable Justice S.A. Onigbanjo had the Jurisdiction to entertain and deliver judgment on the 19th day of May, 2009 in favour of the 1st-6th Defendants/Counter-Claimants in this Suit at the lower Court when the Writ of Summons sealed on 9th November, 1992 and the 3rd Further Amended Statement of Claim dated 7th November, 2005 were signed by Adenugba Adesina & Co and the 2nd Amended Statement of Defence and counter-claim dated 17th March, 2005 were equally signed by Kehinde Osibona & Co in breach of the Provisions of Sections 2(1) and 24 of the Legal Practitioners Act, 1975.

The Respondents, on the other hand, in its Brief of Argument, formulated two issues for determination of this Appeal thus:
1. Whether or not the Appellants adduced sufficient evidence as required by law to warrant the learned trial Judge to make in their favour a Declaration of Title to the Land in dispute.
2. Whether or not the Respondents have satisfactorily proved their counter-claim so as to warrant the learned trial Judge to make a declaration of title to land on their behalf.

Having carefully considered all the issues formulated by the parties, this Court finds that the issues formulated by the Appellants perfectly capture all the grievances of the parties, and therefore this Court will adopt the issues formulated by the Appellants for the purpose of determination of this appeal. Issue four of the Appellant, being a Jurisdictional issue, shall hereby be rearranged as issue one to be considered by this Court.

ISSUE ONE
Whether the learned Honourable Justice S.A. Onigbanjo had the Jurisdiction to entertain and deliver judgment on the 19th day of May, 2009 in favour of the 1st-6th Defendants/Counter-Claimants in this suit at the lower Court when the Writ of Summons sealed on 9th November, 1992 and the 3rd Further Amended Statement of Claim dated 7th November, 2005 were signed by Adenugba Adesina & Co and the 2nd Amended Statement of Defence and Counter-claim dated 17th March, 2005 were equally signed by Kehinde Osibona & Co in breach of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, 1975.

ARGUMENTS OF THE PARTIES
On this issue, learned Counsel to the Appellants submitted that the trial at the lower Court was predicated on the 3rd Further Amended Statement of Claim dated 17th of November, 2005, which can be found on Pages 313-315 of the Record of Appeal. Adenugba Adesina & Co signed this Process. Also, the Respondents’ 2nd Amended Statement of Defence and Counter-Claim dated 17th of March, 2005, the basis of which the Respondents proved their case at the trial Court, and which can be found on Pages 226-230 of the Record, was equally signed by Kehinde Osibona & Co. Since there was no indication as regards the Legal Practitioner called to the Nigerian Bar, who signed the Respective Pleadings, which culminated into the Judgment delivered at the Lower Court on 19th of May 2009, the Suit at the lower Court breached Sections 2(1) and 24 of the Legal Practitioners Act, 1975.

Further, learned Counsel submitted that apart from the Signature of Counsel and the party whom the Counsel represents, and the name and the address of the law firm representing a party, the Court process must also have the name of Counsel that signed it, clearly written after or under the signature of Counsel on the Court Process for the purpose of assisting the Court to confirm that the Person who signed the document is a Legal Practitioner. Having not done this, the identities of the signatories to the pleadings are speculative as Legal Practitioners. He relied on the Case Authorities of PEAK MERCHANT BANK LTD VS NDIC (2011) 12 NWLR (PART 1261) 253 AT 261-262, and MELAYE VS TAJUDEEN (2012) 15 NWLR (PART 1323) 315 AT 338-339.

Learned Counsel submitted that the Originating Court Processes filed by both parties in this suit at the lower Court, having been signed by the parties’ Law Firms, and not by an identifiable Legal Practitioner, is in breach of Sections 2(1) and 24 of Legal Practitioners Act 1975. This makes the proceedings of the Court below leading to judgment a nullity due to the fact that cases built on incompetent Originating Processes are a nullity and must be set aside on jurisdictional grounds, which can be raised at any time. He relied on the case Authorities of OKETADE VS ADEWUNMI (2010) 8 NWLR (PART 1195) 63 AT 74, ALAWIYE VS OGUNSANYA (2013) 5 NWLR (PART 1348) 570, BRAITHWAITE VS SKYE BANK PLC (2013) 5 NWLR (PART 1346) PAGE 1, OKAFOR VS NWEKE (2007) 10 NWLR (PART 1043) 521, OKARIKA VS SAMUEL (2013) 7 NWLR (PART 1352) 19 AT 24.

Learned Counsel submitted finally that the entire action and proceedings at the lower Court are a nullity, and therefore, it would amount to an academic exercise if this Honourable Court will proceed to determine other issues enumerated. It is a settled principle of law that the Court lacks jurisdiction to determine an academic exercise. He therefore urged the Court to allow this appeal and set aside the judgment of the lower Court, relying on the Case Law Authority of THE MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE & ORS VS YAKUBU OF ANOR (2010) 6 NWLR (PART 351) 481 AT PAGE 497.

This Court went through the Respondents’ brief and realized that the learned Counsel did not make any submission on this issue.

RESOLUTION OF THE ISSUE
Jurisdiction is simply the authority, which a Court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision. Reference is made to NATIONAL BANK VS SHOYOYE (1977) 5 SC 181. The importance of Jurisdiction in any adjudication cannot be over-emphasized. It is often described as the life wire of the adjudication process. Without it, every step taken in the case amounts to a nullity, no matter how well conducted and no matter how erudite the decision emanating therefrom. Reliance is placed on EUGENE OGBUJI & ANOR VS ORI AMADI (2022) LPELR-56591 (SC), UTIH VS ONOYIVWE (1991) 1 NWLR (PART 166) 206, SHITTA-BEY VS A.G. FEDERATION & ANOR (1998) 7 SC (PART 2) 121; (1998) LPELR-3055 (SC) AT 30-31 F-G, PETROJESSICA ENT LTD VS LEVENTIS TECHNICAL CO. LTD (1992) LPELR-2915 (SC) AT 23 E-F.
In UTIH VS ONOYIVWE (SUPRA), His Lordship, Bello CJN held:
“…Jurisdiction is like the blood that gives life to the survival of an action in a Court of Law and without Jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”

Now, Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004, provides thus: “2(1) 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. Section 24 of the Act provides thus: ‘In this Act, unless the context otherwise requires, the following expressions have the meanings assigned to them respectively, that is to say…. “Legal Practitioner” means a person entitled to 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 or Proceedings.’ The Apex Court has emphasized in many decisions that the Provisions of the law referred to above, are meant to protect the Legal Profession. They are to ensure that no person other than a person whose name is on the roll, signs legal documents. They are also to eliminate impersonators and fake lawyers from legal practice. See MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE & ORS VS ALHAJI ISIYAKU YAKUBU & ANOR (2013) ALL FWLR (PART 694) 23, (2013) 6 NWLR (PART 1351) 481, (2013) 1 SC 98 AT 114, FIRST BANK (NIG) PLC VS MAIWADA (2012) 5 SCNJ 1, (2012) LPELR -9713 (SC) 187, (2012) 9 SCM 14, (2012) 5 SC (PART III) 1 AT 22, (2013) ALL FWLR (PART 661) 1433, (2013) 5 NWLR (PART 1348) 444, SLB CONSORTIUM LTD VS N.N.P.C. (2011) ALL FWLR (PART 583) 1902.

What then is the effect of a Legal Process not signed by a party or his Legal Practitioner? Learned Counsel to the Appellants have submitted in Paragraph 4.08 of their Brief of Argument filed 10th March, 2016 and deemed 17th January, 2018, that the Originating Processes used to commence this suit at the trial Court, both the Statement of Claim, Statement of Defence and Counter-Claim were signed by Law Firms of the Parties’ Counsel, but not the Counsel themselves as required by the law. According to Counsel, these Originating Processes are defective with the Court being incompetent to hear the suit, and therefore, every Proceeding conducted on these Processes is a nullity.

Unfortunately, the Respondents did not make any reaction to this in their Brief of Arguments.

It is settled that a Court is competent when: 1) It is properly constituted as regards numbers and qualification of the members of the Bench and no member is disqualified for one reason or another; 2) The Subject Matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, 3) The Case comes before the Court, initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of any jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided: the defect is extrinsic to the adjudication. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR (PART 4) 587, (1962) 2 SCNLR 341 AT 348 PER BAIRAMIAN FJ, ATTORNEY-GENERAL, FEDERATION VS GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PART 618) 187, (1989) 5 SC (PART III) 59, (2001) FWLR (PART 32) 87.

A Writ of Summon is an Originating Process. It has been described as the spinal cord of a Suit; the foundation upon which a Suit is based. In KIDA VS OGUNMOLA (2006) ALL FWLR (PART 327) 402, (2006) 13 NWLR (PART 997) 337, (2006) 6 SC 147 AT 152-153, His Lordship PER MUSDAPHER JSC (as he then was), held:
“The validity of the originating process in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.” See also OKARIKA VS SAMUEL (2013) ALL FWLR (PART 706) 484, (2013) 7 NWLR (PART 1352) 19, LPELR-SC.251/2005, DANIEL VS I.N.E.C. (2015) ALL FWLR (PART 789) 993, (2015) 9 NWLR (PART 1463) 113, (2015) 3-4 SC (PART III) 76.”

The effect of the authorities referred to above is that any proceeding conducted upon a defective Originating Process would collapse if the Originating Process is defective. In OKAFOR VS NWEKE (2007) ALL FWLR (PART 368) 1016, (2007) 10 NWLR (PART 1043) 521, (2007) 5 SC 185, (2007) 3 SC (PART II) 55 AT 64-65.

The issue as to whether the signing of a legal process by anyone other than a party or his legal practitioner as a technicality being used to override substantial justice, was fully addressed by the Supreme Court wherein it held that the duty to do substantial justice does not include illegality or encouragement of the attitude of “anything goes”. In other words, the Apex Court has put its stamp on the need for strict compliance with the Provisions of Sections 2(1) and 24 of the Legal Practitioners Act. It no longer admits of any conjecture. I shall now apply the principles to the case at hand.

I have taken time to peruse all the Originating Processes on the basis of which this Suit was tried at the trial Court. I found that the Writ of Summons filed on 9th November, 1992, which can be found at Pages 1-2 of the Records of Appeal, was endorsed by A.A ADESINA & CO.

Also, the 3rd Further Amended Statement of Claim filed 18th November, 2005, which can be found Pages 313-315 of the Records of Appeal, was signed by ADENUGBA ADESINA & CO. The 2nd Amended Statement of Defence and Counter-Claim filed 17th March, 2005, which can be found on Pages 226-230 of the Records of Appeal, was signed by KEHINDE OSIBONA & CO.

As can be seen above, all the Originating Processes with which this suit was commenced at the trial Court, including the Counter-Claim which was resolved in favour of the Respondents, were all signed by Law Firms.

The Appellants who raised this issue is the Claimant at the trial Court, who actually initiated this Suit vide the alleged defective Writ of Summon. It is trite that a party cannot benefit from his wrong. Equity, acting in person am, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to the temple of justice with dirty hands. Reliance is placed on PDP & ORS VS EZEONWUKA & ANOR (2017) LPELR-42563 (SC), TERIBA VS ADEYEMO (2010) LPELR-3143 (SC).

The Statement of Defence and Counter-Claim entered by the Respondents on the strength of which the trial Court determined this Suit in favour of the Respondents have been discovered to be signed by Law Firm. It is trite that a Counter-Claim, although filed alongside a substantive Suit is a separate and independent claim. A Counter-Claim, to quote from Halsbury’s Laws of England (3rd ed.) Vol. 34, p.395, Paragraph 671, is -“A weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action.” Instead of suing separately, the defendant may insert his claim into the plaintiff’s suit under the label of Counter-Claim if it is of a kind, which by law he is entitled to raise and have disposed of in the plaintiff’s suit. KOLADE & ORS VS OGUNDOKUN (2017) LPELR-48001(SC), NSEFIK & ORS. VS MUNA & ORS (2014) ALL FWLR (PART 718) 845, (2014) 2 NWLR (PART 1390) 151, JERIC (NIG.) LTD VS UNION BANK OF NIGERIA PLC (2000) 15 NWLR (PART 691) 447, (2000) 12 SC (PART 11) 133, (2001) FWLR (PART 31) 2913.

In the Case Law Authority of SLB CONSORTIUM VS N.N.P.C. (2011) 9 NWLR (PART 1252) 317, the Apex Court explained how processes filed in Court are to be signed. The Court held thus:
“All processes signed in Court are to be signed, by (a) The Signature of Counsel, which may be any contraption; (b) Secondly, the Name of Counsel clearly written (c) Thirdly, who counsel represents; (d) Fourthly, name and address of legam.”l fir
In the Case Law Authority under reference, the Originating Summons and the Amended Statement of Claim complained of were signed by “Adewale Adesokan & Co” and Since Adewale Adesokan & Co is not a Legal Practitioner, whose name is on the Roll, the Originating Processes were held to be defective and the appeal arising from the proceedings initiated and conducted without jurisdiction, was incompetent.
The position of the law as it stands, is that a Legal Process signed and issued by a Law Firm is definitely incompetent and is liable to be set aside. Processes used in Court, must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act. Reliance is placed on the Case Authorities of ALAWIYE VS OGUNSANYA (2012) 5 NWLR (PART 1348) 570; SLB CONSORTIUM VS N.N.P.C. (2011) 9 NWLR (PART 1252) 317, and more recently, ADEKUNLE AJIBODE & 4 ORS VS DAUDA GBADAMOSI & 3 ORS (2021) SC PER NGWUTA JSC ELC 3476, where it was held that any other mode of signing and authenticating a Legal Process, will render the Process a nullity, as it does not in the eye of the law exist and so cannot invoke the judgment of the Court. Further, parties to an action cannot waive this defect. OKORO JSC held in support, that a breach of the Legal Practitioners Act could not be termed as an irregularity as it goes to the root of the case.
In CHUKWUDI NNALIMUO & 3 ORS VS SUNDAY ELODUMUO & 2 ORS (2018) SC ELC 3411, PER AMINA AUGIE JSC, categorically held that a Law Firm cannot legally sign and/or file any process in the Courts, and any such process signed by a Law Firm is incompetent in law. See also S.D. BAGE JSC IN DR. CHIKE ONYEKWULEJE & 1 OR VS G.B. ANIMASHAUN & 1 OR (2019) 77 NSCQR AT 1015, who held that the defect in the processes was extrinsic, to the effect that they were signed by a person not ascertainable in law and procedure. AKAAHS JSC went further to hold that since the initiating process was a nullity, any appeal predicated upon such a judgment, is equally null and void.
In this instant appeal, the Law Firm of “KEHINDE OSIBONA & CO” signed both the Statement of Defence as well as the Counter-Claim, which was the basis on which judgment was given in favour of the Respondents. By the numerous principles laid down severally by the Apex Court, it is clear that these processes were not signed by any person known to law, and neither were their names on the roll, and therefore, it is found that the Processes were signed contrary to Section 2 and 24 of the Legal Practitioners Act and are defective.
The trial Court accordingly lacked Jurisdiction to entertain the Counter-Claim, and all the Proceedings conducted thereon are hereby determined to be a nullity. 

It is also clear that where a trial Court had no jurisdiction to try a matter, the Court of Appeal has no jurisdiction to affirm the decision therefrom as held in the case of MR. OLUFEMI AYORINDE VS CHIEF AYODELE KUFORIJI (2022) SC ELC 3597 AT PAGE 1. This issue is hereby resolved in favour of the Appellant.

Having resolved that all the Proceedings conducted by the trial Court upon the Counter-Claim are in nullity, I find it fruitless considering the remaining issues in this appeal.

This appeal is allowed.

The judgment of the trial Court delivered 19th May, 2005 is hereby set aside.
No order is made as to cost.

ONYEKACHI AJA OTISI, J.C.A.: I read in advance a draft copy of the judgment of my Lord, Adebukunola Adeoti Banjoko, JCA, in which this appeal was allowed. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support.

By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent. A foremost authority was the case of Okafor v. Nweke (2007) LPELR-2412(SC).
About five years later, this position of the law was affirmed by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1. On whether the decision in Okafor v Nweke (supra) was mere technical justice, which ought to be revisited, the Supreme Court held, pages 15 – 16 of the E-Report:
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See Dada v. Dosunmu (2006) 12 PNJSC 115. 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. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.”
The Supreme Court then declined the invitation to revisit the decision in Okafor v. Nweke since it was not in any respect wrong in law.
The decision in Okafor v Nweke (supra) and the subsequent decision of FBN v Maiwada (supra), have been followed in a number of decisions of the Apex Court and of this Court. To mention but a few, see SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC), Okarika v. Samuel (2013) LPELR-19935(SC), Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC), Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC), GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC), Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC), Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA), Igiriga v. Bassey (2013) LPELR-20346(CA), N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22140(CA), Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA), Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA).
Without going into much detail, it is important to note that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 3 NWLR (PT 1625) 420, per Eko, JSC, and in Bakari v. Ogundipe & Ors (2020) LPELR-49571(SC), per Rhodes-Vivour, JSC, which appeared to have espoused the contrary position of waiver of the right to object to a defective process that has not been appropriately signed by a legal practitioner, where the party objecting had participated in the proceedings, were not decisions of the Supreme Court sitting as a full Court. In First Bank of Nigeria Plc v. Maiwada (supra), 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 other 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. As earlier stated, that full panel validated the position of the law in Okafor v Nweke (supra).
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. See also the recent affirmation in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC), per Ngwuta, JSC (of blessed memory); Ojikutu & Ors v. Kuti & Ors (2021) LPELR-56231(SC), Skypower Express Airways Ltd v. UBA Plc & Anor (2022) LPELR-56590(SC), Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC).
The failure of the Respondents’ Counsel to sign the Statement of Defence and Counter-Claim before the lower Court was a defect that impacted on the jurisdiction of the lower Court to entertain the matter. Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been; Lakanmi v Adene (2003) LPELR-1750(SC), Ekulo Farms Ltd v UBN Plc (2006) LPELR-1101(SC), Obaba v Military Governor of Kwara State(1994) LPELR-2147(SC). It is also trite that a jurisdictional issue can be raised at any time, even at the Apex Court; Adegoke v Adibi (1992) LPELR-95(SC), Adesola v Abidoye (1999) LPELR-153(SC); Olutola v University of Ilorin(2004) LPELR-2632(SC).

It is for the above reasons, and for the fuller reasons given in the leading judgment that I also allow this appeal. I abide by the orders made therein.
PETER OYINKENIMIEMI  AFFEN, J.C.A.: I hereby give my concurrence to the leading judgment prepared by my Lord, Adebukunola Adeoti Ibironke Banjoko JCA, the draft of which I had the privilege of reading before now.

The reasoning and conclusions reached on the issues raised in this appeal accord with mine and I adopt them as my own in allowing this appeal and setting aside the judgment delivered on May, 2005 in Suit No. ID/2836/92 for being a nullity. I equally abide by the consequential order on costs.

Appearances:

OKUNOWO OLUFOLAHAN OLUWASEUN For Appellant(s)

KEHINDE OSIBONA For Respondent(s)