ALHAJA RISIKATU DAWODU & ORS v. MRS. MUFUTIAT BALOGUN & ANOR
(2015)LCN/8012(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of November, 2015
CA/L/785/2009
RATIO
COURT: JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED
It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to this Court and indeed the Supreme Court. It is however, important that any issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. See Ukwu v. Bunge (1997) 8 NWLR pt 518 pg 527. Jeric Nig Ltd v. Union Bank of Nigeria Plc (2009) 12 SC pt 11 pg 133, AG, Lagos State v. Dosunmu (1989) 3 NWLR pt 111 pg 552, Nnonye v. Anyichie (2005) 2 NWLR pt 910 pg 623. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHEN IS A COURT COMPETENT
It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted,Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503,Madukolu v. Nkemdilim (1962) 1 All NLR 587,Skenconsult v. Ukey (1981) 1 SC 6, Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (Pt.521) 388,Magaji v. Matari (2000) 5 SC 46, Alao v. African Continental Bank Ltd (2000) 6 SC (Pt 1) 27, Galadima v. Tambai (2000) 6 SC (Part 1) 196, Araka v. Ejeagwu (2000) 12 SC (Pt 1) 99,Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt 978) 39. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHAT MUST THE COURT LOOK AT IN CONSIDERING WHETHER IT HAS JURISDICTION TO ENTERTAIN A MATTER
In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. See Gafar v. Government Kwara State (2007) 4 NWLR pt 1024 pg 375, Onuorah v. KRPC (2005) 6 NWLR pt 921 pg 393, Tukur v. Government of Gongola State (1989), 4 NWLR Pt 117 pg 517 Nkuma v. Odili (2006) 6 NWLR Pt 977 Pg 587. per. UZO I. NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
1. ALHAJA RISIKATU DAWODU
2. ALHAJI TAJUDEEN GAJI
3. ALHAJI MOJIDI DAVIES
4. ALHAJI RASAKI DAVIESAppellant(s)
AND
1. MRS. MUFUTIAT BALOGUN
2. ALHAJI GANIYU ALAKARespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 6th of March, 2008.
The appellants as claimants in the lower court commenced this suit claiming a declaration to the property situate at 12/14, Agoro Street Ereko, Lagos State, possession and damages for destruction of properties and perpetual injunction against the present respondents.
The appellants called four (4) witnesses in proof of their case. The respondents called 2 (two) witnesses. At the end of the trial, the trial Judge dismissed the appellants’ suit and gave judgment declaring that the respondents were entitled to their claim. Being dissatisfied, the appellants appealed with a notice of appeal containing five (5) grounds.
The appellants filed their amended appellants’ brief on the 20th of November, 2013 and an appellants’ reply brief on the 5th of December, 2014 but deemed properly filed and served on 15th October, 2015.
The respondents filed their brief on the 23rd December, 2013. At the hearing of this appeal, both counsel adopted their briefs in urging the court to allow or dismiss this appeal
according to their various briefs.
The court however, drew the attention of the appellants’ counsel to his writ dated the 10th of June, 1997 but filed on the 12th of June, 1997 particularly found on page 2 of the record of appeal.
On the writ, the law firm of M.A. Bashua & Co. signed. The court therefore asked both counsel to address it on the status of the writ. The learned counsel for the appellant prayed to leave it at the courts discretion. The learned counsel for the respondents referred the court to the locus classicus on this issue of signing signatures i.e Okafor v. Nweke (2007) 10 NWLR Pt 1043 pg 521, (2007) 3 SC Pt 11 Pg 55 and urged the court to dismiss this appeal, it being incompetent.
The writ is as seen in the record of appeal:
Signed
M. A. Bashua & Co.
Plaintiffs Solicitors
216, Bamgbose Street
Lagos
The question to be asked is whether M A Bashua & Co is a legal practitioner recognized by law?
Section 2(1) of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria, 1990 provides as follows:
“Subject to the provision 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.”
It is therefore clear that the person who is entitled to practice as a legal practitioner must have had his name on the Roll: It does not say that his signature must be on the Roll but his name.
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 proceedings.”
Onnoghen JSC in this case expounded this to mean:
“The combined effect of the above provision 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.”
It must however, be noted that a law firm is not a legal practitioner and therefore cannot practice as such by filing processes in Nigerian courts. Only human beings actually called to the bar can practice by signing documents.
See Section 24 of Legal Practitioners Act Cap 11 LFN 2004. Okafor v. Nweke (Supra)
The rule is that court processes signed in the name of a law firm without indicating the name of the
practitioner who signed them are incompetent and are liable to be struck out. In other words, court processes must be signed by a legal practitioner known to Law. Okafor v. Nweke (Supra)
If the signature is signed by a law firm as in this case it robs the court of jurisdiction to adjudicate on this suit. The signing of a writ is a condition precedent to be fulfilled before a court can assume jurisdiction. The question of jurisdiction is very fundamental and goes to the root of all adjudication. If a court proceeds without jurisdiction, all proceedings however, well conducted amounts to a nullity.
?It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to this Court and indeed the Supreme Court. It is however, important that any issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. See Ukwu v. Bunge (1997) 8 NWLR pt 518 pg 527. Jeric Nig Ltd v. Union Bank of Nigeria Plc (2009) 12 SC pt 11 pg 133, AG, Lagos State v. Dosunmu (1989) 3 NWLR pt 111 pg 552, Nnonye v. Anyichie (2005) 2 NWLR pt 910 pg 623.
It is settled that a court is competent when the court is properly
constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted,Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503,Madukolu v. Nkemdilim (1962) 1 All NLR 587,Skenconsult v. Ukey (1981) 1 SC 6, Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (Pt.521) 388,Magaji v. Matari (2000) 5 SC 46, Alao v. African Continental Bank Ltd (2000) 6 SC (Pt 1) 27, Galadima v. Tambai (2000) 6 SC (Part 1) 196, Araka v. Ejeagwu (2000) 12 SC (Pt 1)
99,Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt 978) 39.
In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. See Gafar v. Government Kwara State (2007) 4 NWLR pt 1024 pg 375, Onuorah v. KRPC (2005) 6 NWLR pt 921 pg 393, Tukur v. Government of Gongola State (1989), 4 NWLR Pt 117 pg 517 Nkuma v. Odili (2006) 6 NWLR Pt 977 Pg 587.
In the present appeal, this Court suo motu perceived that the writ was signed by a law firm and not a legal practitioner as envisaged by the Legal Practitioners Act. Nnonye v. Anyichie (supra)
The writ having been signed by a law firm, a person unknown to law, the writ is therefore incompetent. Where the originating process as in this suit is incompetent, it robs the court of the necessary vires to entertain this appeal.
This appeal is incompetent and therefore struck out. Cost to the respondents is assessed at N50,000 against the appellants.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the succinct judgment prepared by my learned brother, Uzo I. Ndukwe-Anyanwu, J.C.A., with which
I agree and adopt as my judgment with these few words by way of emphasis.
I believe the order striking out the suit does not put an end to the suit. The door of justice is still ajar to accommodate a fresh action by the claimant vide the apex court case of First Bank of Nigeria Plc and Anor. v. Maiwada (2013) 5 NWLR (Pt.1348) 444 at 489 where the full court (Musdapher, C.J.N., Mohammed J.S.C., now C.J.N., Chukwuma-Eneh, Fabiyi, Adekeye, Peter-Odili and Ariwoola, J.J.S.C.) held in similar circumstances per the lead judgment of Fabiyi, J.S.C., inter alia that –
“It follows that no injustice is done to the litigant since the result of the irregularity is an order striking out the suit or process which leaves the real legal practitioner with an opportunity to come back to court to lift this veil and file a proper process as the legal practitioner whose name is on the roll of this Court. The court should consider such an application on its merit. Such will enhance good practice culture amongst legal practitioners generally.”
See also Sifax Nigeria Limited and Ors. v. Migfo Nigeria Limited and Anor. (2015) 4 C.A.R., page 1 per the lead judgment of my learned brother,
Oseji, J.C.A., to the effect that a case struck out on ground of incompetence is not dead and that time would not run during the pendency of the action for the purpose of the computation of time in Limitation Law in respect of such case.
Accordingly, I too find the originating process, the writ of summons filed at the court below, incompetent and hereby strike out the writ of summons and the suit built on it at the court below, and abide by the consequential order on costs contained in the lucid lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the draft of the judgment just delivered by my learned brother Uzo I. Ndukwe-Anyanwu and I agree with the reasoning and conclusion contain therein.
I abide by the consequential orders made therein including that as to costs.
APPEARANCES
Aderemi Bashua, R. A. Babatunde- For Appellants
O.J.Oyetuga- For Respondents
Appearances
Aderemi Bashua, R. A. BabatundeFor Appellant
AND
O. J. OyetugaFor Respondent
