ALHAJI ABDUL RAUF TIJANI & ANOR v. FIRST BANK OF NIG. PLC
(2013)LCN/6105(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/L/39/12
RATIO
”A court process – writ of summons, statement of claim et al signed by a law firm is incompetent and robs the court of the jurisdiction to adjudicate on it – See Abbas v. Tera (2013) 2 NWLR (Pt.1338) 284, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1346) 1, Nwaigwe and Ors. v. Okere (2008) 5 SCNJ 256, Enitan and Ors. v. The State (1986) 3 NWLR (Pt.30) 604.” Per IKYEGH, J.C.A
”..what actually makes the participation of a lawyer (counsel) in a court case so vital is his adequate knowledge of the law. His ability to apply that knowledge to given fact situations; to sift relevant, admissible and often complex evidence from what is irrelevant and inadmissible. And most importantly, his skills in argumentation and power of persuasion. I think, it was Lord Simon who once cited with approval Dr Johnson’s observation in 5 BOSWELL’S LIFE OF JOHN- (Birkbeck Hill edition) 26, thus: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL ER. 1169 @ 1176. See also ARTICLE 14 (3) (d) of the International Covenant on Civil and Political Rights; Article 7 (i) (c) of the African Charter on Human and Peoples Rights; Article 8 (2) (d) of the American Convention on Human Rights; Article 6 (3) (c) of the European Convention for the Protection of Human Rights And Fundamental freedoms.” Per SAULAWA, J.C.A.
”..it’s very difficult, if not impossible, for the vexed issue of jurisdiction to crop up without bearing in mind the well cherished locus classicus – MADUKOLU VS. NKEMDILIM (1962) 1 All NLR. Indeed, it’s in that notorious case the Supreme Court laid down the veritable principle, to the effect, that a court’s jurisdictional competence to entertain, hear and determine (adjudicate upon) a case is contingent upon the following factors or conditions: a) That the court is properly constituted as to numbers and qualifications thereof; b) That the processes are initiated in accordance with due process of the law; the subject matter of the case is within its jurisdiction, and there is no feature therein which prevents it from exercising jurisdiction; and c) The case is initiated by the process of law, and upon satisfying any condition precedent to exercise of jurisdiction. (1962) 2 SCNLR 341; Per Bairamian, FJ, See also STATE VS. ONAGORUWA (1992) 2 NWLR (Pt. 221) @ 57 paragraph E; MACFOY VS. UAC LTD (1961)13 WLR @ 1409, per Lord Denning, MR; TUKUR VS. GOV. GONGOLA STATE (1989) NWLR (Pt. 117) 517; EHIRIM VS. ISIEC (2008) 15 NWLR (Pt. 1111) 443.” Per SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI ABDUL RAUF TIJANI
2. TUNDOKUN INVESTMENT CO. LTD Appellant(s)
AND
FIRST BANK OF NIG. PLC Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is consequent upon the ruling of the High Court of Lagos State, Lagos Judicial Division, delivered on October 18, 2011 in suit No. ID/730/2003. By the ruling in question, the lower court, coram F. O. Atilade, J; dismissed the Appellants’ application, dated June 19, 2010, seeking to amend the writ of summons and amended statement of claim thereof, dated February 13, 2007, respectively.
The Appellants were dissatisfied with the said ruling, thus filed the notice of appeal thereof on November 26, 2011, which is predicated upon three grounds.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL
The facts and circumstances surrounding the present appeal are not far to seek. They are gleanable from the records of appeal. It is evident from the records, that the Appellants had instituted the suit in question, vide a writ of summons, dated February 13, 2007, against the Respondent in the court below. By the indorsement to the writ of summons and paragraph 26 of the “FURTHER AMENDED STATEMENT OF CLAIM” thereof, contained at pages 1-9 of the Record, the Appellants have claimed against the Respondent the following reliefs:
(A) (i) The 1st Claimant claims the sum of N=31,754,748.34 (Thirty One Million Seven Hundred and Fifty Four Thousand Seven Hundred and Forty Eight Naira and Thirty Four Kobo) being sums unlawfully debited to the 1st Claimant’s account by the Defendant at its Agege Main Branch;
(ii) Interest on the said sum of N=31,754,748.34 (Thirty One Million Seven Hundred and Fifty Four Thousand Seven Hundred and Forty Eight Naira and Thirty Four Kobo) at the rate of 28% per annum until final liquidation.
(iii) A declaration that the 1st Claimant is entitled to a return of his original title documents, namely Laos State Government Certificate of Occupancy Nos. 79/79/2002B and 80/80/2002B on the ground of total failure of the consideration upon which the said Certificates of Occupancy were deposited with the Defendant.
(iv) An order that the Defendant do forthwith return to the 1st Claimant the Certificates of Occupancy aforesaid in (iii) above;
(v) An order of Perpetual Injunction restraining the Defendant from attempting to process; processing or further processing any form of mortgage in respect of the properties covered by the Certificates of Occupancy referred to (iii) above;
(vi) An order of Perpetual Injunction restraining the Defendant transferring or attempting to transfer in any manner howsoever, the said Certificates of Occupancy or the properties covered by them to any third party.
(B) (i) The 2nd Claimants the sum of N=38,000.00 (Thirty Eight Thousand Naira) being the sums unlawfully debited to the 2nd Claimant’s account by the Defendant at its Agege Main Branch;
(ii) The 2nd Claimant further claims the sum of N=46,764,000.00 (Forty Six Million Seven Hundred and Sixty Four Thousand Naira) being the loss of profit suffered on the electrification contracts which could be executed and were thereby cancelled as result of the acts and omissions of the Defendant.
On July 2, 2007, at the conclusion of the pre-trial conference, the lower court ruled to the following effect –
There were Thirteen (13) Pre-Trial Conferences in this case. Parties were unable to settle at the pre-trial conferences. Claimants intend to call two (2) witnesses and the Defendant to call one (1) witness at the trial of this matter….
The matter is therefore ripe for Trial and hereby recommended for reassignment to the Trial Judge.
(See pages 37-38 of the Record.)
Consequent upon which, the case proceeded to trial. However, in the course of the trial of the suit, the Appellants deemed it expedient to file in the court below a motion on notice, dated June 19, 2010, seeking the following reliefs:
(a) AN ORDER seeking leave of this honourable court to amend the writ of summons dated 13th day February 2007 and Amended Statement of claim dated 13th February 2007 in the manner and to the proposed extent stated in the amended writ of summons and Amended Statement of claim attached as Exhibit A and B;
(b) AN ORDER deeming it as been duly granted and properly served on the Defendant/Respondent.
The said application was supported by a 15 paragraphed affidavit, Exhibits A & B attached thereto, and a written address. On the part thereof, the Respondent filed a 14 paragraphed counter affidavit, dated June 28, 2010, and a written address in response to the application. The respective parties addressed the court. Consequent upon which, the lower court reserved ruling to October 18, 2001 and further hearing.
On the said date, the lower court delivered the vexed ruling, to the conclusive effect, thus:
I have carefully examined the records of proceedings in this cause and it is my observation that apart from the fact that this court had dismissed a similar application brought by the Claimant in its ruling dated 2nd of June 2010, the Claimant had amended his originating processes twice: Firstly on the 2nd November 2005 and subsequently on the 13th February 2007 and the application before the court is aimed at amending an already amended processes..
This is moreso because the court is prevented from delving in to the substantive suit at the interlocutory stage.
In the light of the foregoing, I find no hesitation in dismissing the Claimants/Applicants’ application. Consequently, the application dated the 9th June 2010 is hereby dismissed and parties are hereby enjoined to show commitment towards the speedy conclusion of this case.
As alluded to above, the Appellants’ notice of appeal, filed on October 26, 2011, is contained at pages 442-445 of the Record. The record of appeal was transmitted to this court on January 31, 2012. An additional record of appeal was equally transmitted on April 10, 2012. The 1st Appellant’s brief of argument was filed on February 21, 2012. A reply brief was also filed by the 1st Appellant on November 7, 2012. At page 2 of the brief thereof, the 1st Appellant has formulated four issues for determination viz:
1. Whether or not it is the Claimants/Appellants’ process that determine the question of jurisdiction of court?
2. Whether the Ruling/Judgment of any courts of Record delivered out of jurisdiction can stand or maintainable in law?
3. Whether jurisdiction of court covered entertaining illegality that is a crime that attracts sanction in term of fine and conviction?
4. Whether the Court of Appeal has full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance?
Submitting on both issues 1 & 2, the 1st Appellant contended that the lower court has glossed over the issue of jurisdiction raised by the Appellants, vide their further and better affidavit in support of the motion, dated June 9, 2010. That, it’s the process that are in conformity with the prescription of law (that) determines the jurisdiction of court. See Order 15 Rule 2, Lagos State High Court (Civil Procedure) Rules, 2004.
Further submitted, that the Appellants’ statement of claim, dated February 13, 2007, was neither signed by a legal practitioner, nor the Appellants. And the implication of that error is well stated in the case of (i) MADUKOLU VS. NKEMDILIM (1962) 1 All NLR at page 595; (ii) GOV. OF ANAMBRA (STATE) VS. ANAH (1995) 8 NWLR (Pt. 412) 219 C-D; (iii) STATE VS. ONAGORUWA (1992) 2 NWLR (Pt. 221) @ 57; (iv) NDIC VS. LAGOS STATE GOVST. (2011) 1 NWLR (Pt. 1229) @ 651 E-F; (v) MACFOY VS. UAC (1961) 3 WLR @ 1409.
The court has been urged upon to set aside the ruling of the lower court, delivered on the void process without jurisdiction.
On issue No. 3, it was submitted, inter alia, that it’s established that the Respondent’s 2nd further amended statement of defence and counter claim, dated April 23, 2009 (pages 126-163, Record), are forged processes filed against the law.
The rhetorical question-
“How did the Respondent’s forged processes affect the jurisdiction of the Honourable Court of Appeal?”
was posed by the 1st Appellant. For an answer to that rhetorical question, reference was made to (i) IBRAHIM VS. OSIM (1988) 3 at page 260-2 P.15 paragraphs H-A; and P. 16 at P. 261 per Obseki, JSC; (ii) NATIONAL INSURANCE CORP. OF NIG VS. POWER IND. ENGR. CO LTD (1986) 1 NWLR (Pt. 14) 4 at 28, per Oputa, JSC.
The court is urged to pronounce what the law say, by striking out the Respondents’ “fraudulently purported 2nd further amended statement of defence”, and accordingly dismiss the counter claim.
Regarding the issue No. 4, it was submitted, inter alia, that Exhibit C (2nd Appellant’s continued statement of banking transaction with Respondent), has been clearly proved that it emanated from the Respondent. Thus Exhibit G (expert evidence) needs no further proof.
At paragraph 13.0, page 10 of the brief thereof, the 1st Appellant has urged upon this court-
“To allow this appeal and resolve this claim (sic) in favour of the Appellants/Claimant”.
On the other hand, the Respondent filed the brief thereof on May 5, 2012. At page 3 of the said brief, a sole issue has been raised, to the effect of “Whether a decision denying a party a prayer to amend its pleadings amounts to an issue of jurisdiction.”
It was submitted, that it’s the law, that an applicant seeking to amend processes with the aim of correcting a mistake or error, designed to ensure that justice is served, shall be granted regardless of the stage of proceedings. See OKAFOR VS. IKEANYE (1979) 13 4 SC 99.
However, if the application is mala fide, or intended to be used as a tool to introduce fresh facts or issues, to over reach the Defendant, the amended shall not be allowed. See UBN LTD VS. OGBOH (1995) 2 NWLR (Pt. 647); IWEKA VS. SCOA NIG LTD (2000) 3 SC 21; ADEPEGA VS. OLUGBADE (1987) 6 SCNJ 127. ORDER 2 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004.
Further submitted, that the Appellant had amended the processes thereof twice on July 22, 2005 and February 13, 2007. And the amended application, dated June 2, 2010, was however dismissed. See pages 285-288, Records. That, ruling of the lower court clearly followed Order 24 Rule 1 (supra). Thus, to have allowed the amendment without cogent explanation, would have come against the rules of court. See CCB (NIG) PLC VS. STATE (1992) 8 NWLR (Pt. 261) 528 @ 546, per Ogudare, JSC.
It was contended, that no issue of jurisdiction arises from the vexed ruling of the lower court. That the grounds and issues raised in this appeal do not flow from the ruling. They are superfluous and go to no issue. Thus, they must be struck out. Relying on AKINLAGUN VS. OSHOISO J. A. (2006) 5 SC (Pt. 11) 100 @ 108 paragraph 30; MADUKOLU VS. NKEMDILIM (SUPRA) 341.
On the whole, it was contended, that the ruling does not fall within the circumstances stated in MADUKOLU VS. NKEMDILIM’S case (supra). That, no issue of jurisdiction has been ruled upon, so cannot (now) be subject for appeal. The court is urged to so hold, and accordingly dismiss the appeal, as being unmeritorious.
I have amply, albeit, dispassionately considered the circumstances surrounding the instant appeal, the submissions of the parties, contained in their respective briefs of argument vis-a-vis the Records of appeal, as a whole.
Most strangely, each of the four issues formulated by the 1st Appellant in the brief thereof has raised the fundamental issue of jurisdiction. Not surprisingly, the Appellant is not a legal practitioner. Regrettably, he deemed it appropriate to appear and argue this appeal in person. By the Amended Statement of claim inquestion, dated February 13, 2007, the two Appellants claim the sum of N=31,754,748.34 and N=84,764,000.00, respectively against the Respondent. Thus, the total claims of both Appellants against the Respondent have amounted to N=116,518,748.34, plus interests thereon. It is rather unfortunate, that the Appellants could not afford to hire a competent counsel to represent them.
Yet, it’s a well settled principle, that the participation of a lawyer in any criminal proceedings, as well as in complex civil proceedings (such as the instant case), on behalf of an accused person (or litigant, as the case may be), is very essential to a fair trial. The participation of a lawyer in a case is intrinsically connected to the accused person’s or litigant’s right to adequately defend himself, or present his case. As once aptly articulated by Lord Denning, MR-
It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in-intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT VS. GREYHOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549
From the above eloquent dictum of Lord Denning, MR, it’s rather obvious, that what actually makes the participation of a lawyer (counsel) in a court case so vital is his adequate knowledge of the law. His ability to apply that knowledge to given fact situations; to sift relevant, admissible and often complex evidence from what is irrelevant and inadmissible. And most importantly, his skills in argumentation and power of persuasion. I think, it was Lord Simon who once cited with approval Dr Johnson’s observation in 5 BOSWELL’S LIFE OF JOHN- (Birkbeck Hill edition) 26, thus:
As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself if he could.
See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL ER. 1169 @ 1176. See also ARTICLE 14 (3) (d) of the International Covenant on Civil and Political Rights; Article 7 (i) (c) of the African Charter on Human and Peoples Rights; Article 8 (2) (d) of the American Convention on Human Rights; Article 6 (3) (c) of the European Convention for the Protection of Human Rights And Fundamental freedoms.
At this point in time, the following rhetorical question is rather pertinent what then are the likely consequences of a party’s election to conduct his case in person?. I think, the answer to that pertinent rhetorical question is not far-fetched. See AMICI CURIAE; PROSECUTOR VS. MILOSEVIC: CASE NO. IT-02-54-AR73.6, dated January 20, 2004, wherein consequent upon the complaint of the accused person that the Trial Chamber had not accorded him adequate time to prepare his defence (as for instance, he had to peruse at least 350,000 pages of complex material evidence of the prosecution), the Appeals chamber held, inter alia, thus:
There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well equipped legal defence team could have provided. A Defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal systems respect for a Defendant’s decision to forgo assistance by counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.
I have accorded a critical, albeit dispassionate, consideration upon the submissions of the parties contained in the respective briefs thereof.
Having amply considered the notice of appeal and grounds upon which it’s predicated, the four issues raised and argued in the 1st Appellant’s brief ought to be subsumed into two issues, thus:
1. Whether the lower court was right in refusing the Appellants’ application for amendment of the writ of summons and the further amended statement of claim, dated February 13, 2007, respectively.
2. Whether the lower court has the jurisdictional competence to proceed with the trial of the suit.
ISSUE NO. 1:
The gravamen of the 1st Appellant’s complaint is that:
“In the instant case, the Appellants’ statement of claims dated December 13, 2007 that is extant was not signed by a legal practitioner nor (sic) Appellant”.
The vexed processes, the writ of summons and the Further Amended Statement of claim (dated December 13, 2007), are contained at pages 1-9 of the Records. At page 1A of the Record, the writ of summons was indicated to have been duly issued and signed thus:
This writ was issued by OTUNBA KAYODE OGUNJOBI OF ROU & CO. whose address for service is 12, Oyinkan Abayomi Drive Ikoyi, Lagos. Legal practitioner, for the said claimant who resides at ….. 12, OYINKAN ABAYOMI DRIVE IKOYI, LAGOS …”
Thus, it’s clear that the said writ of summons was undoubtedly signed and issued by a known legal practitioner, in the person of Otunba Kayode Ogunjobi .
However, regarding the Further Amended Statement of claim, contained at pages 2-9 of the Records, it’s an entirely a different kettle of tea! On page 9 of the Record, at the foot of the said Further Amended Statement of claim, it’s curiously indicated to have been signed, thus:
“Dated this 13th day of February, 2007.
ROUQ & Company Legal Practitioner 12, Oyinkan Abayomi Drive Ikoyi, Lagos Nigeria”
Ironically, however, the name of the legal practitioner that purportedly signed the said Further Amended Statement of claim is not known to law like the proverbial ‘unknown soldier’, the identity of the legal practitioner that signed the said Further Amended Statement Claim remains eternally shrouded in mystery! Thus, by implication, that process is incompetent and cannot be relied or acted upon by the lower court, or any court for that matter.
The position of the law is very much unequivocal on that point!
First and foremost, by virtue of the provision of Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004:
“Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person”.
In the instant case, as rightly submitted by the 1st Appellant, the purported Further Amended Statement of claim, dated February 13, 2007 was neither signed by a legal practitioner known to law, nor personally by the 1st Appellant. That being the case, therefore, the purported process inquestion is incompetent, and cannot be relied upon for the determination of the case between the respective parties.
In the instant case, the authority that cherishingly readily comes to mind, regarding the vexed issue, is no other than OKAFOR VS. NWEKE (2007) LPELR-2412 (SC). The unanimous judgment was delivered by the Supreme Court on March 9, 2007 in suit No. SC. 27/2002. In that case, a motion was filed seeking various reliefs, against the Respondent. Most ironically, however, all the processes filed by the Applicants, including proposed notice of cross-appeal, the affidavit in support thereof, and brief of argument were purportedly signed by “J.H.C. OKOLO, SAN & CO.” Thus, not surprisingly, the vexed fundamental issue that arose for determination in the appeal was-
1. Whether the notice of motion, notice of (CROSS) appeal and the applicants’ brief of argument for extension of time in this application are null and void.
In the determination of the appeal, the Supreme Court posed the fundamental question of-
“Whether J.H.C. OKOLO SAN & CO. is a legal practitioner recognized by the law?”
Per Onnoghen, JSC. His Lordship, without any much ado, answered that fundamental question, thus:
From the submissions of both counsels, (sic), it is very clear that the answer to that question is in the negative. In other words, both Senior Counsels agree that J.H.C. OKOLO SAN & CO. is not a legal practitioner and therefore cannot practice as such by say filing processes in the courts of this country …
… since both counsel agree that J.H.C. OKOLO SAN & CO. is not a legal practitioner recognized by the law, it follows that the said J.H.C.OKOLO SAN & CO. cannot legally sign and/or file the motion on notice filed on 19th December 2005, notice of cross appeal and applicants’ brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. OKOLO SAN & CO. are incompetent in law particularly, as the said firm of J.H.C. OKOLO SAN & CO. is not a registered legal practitioner.
The Supreme Court’s decision in NWEKE VS. OKAFOR (supra) was empirically predicated upon the well set out, and rather unequivocal, provisions of section 2 (i) of the Legal Practitioners Act CAP. 207, Laws of the Federation, 1990 as amended, which are to the following effect:
“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.”
Afortiori, the provision of section 24 of the Legal Practitioners Act defines a legal practitioner, thus:
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.
Thus, as authoritatively held by the Apex court-
The combined effect of the above provisions (sections 2 (i) & 24 of the Legal Practitioners Act) 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.
Per Onnoghen, JSC at 10-12, paragraphs D-A.
In arriving at the above over whelming decision, the Supreme Court undoubtedly took into consideration the uncompromisable need for substantial justice, which is predicated on the balance of justice, with a view to arresting –
The current embrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from legal practitioners.
As a veritable exhortation, His Lordship aptly observed, that –
Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and the not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.
The law exists as a guide for actions needed for the practice of the law, not to be twisted and tuned to serve whatever purpose, legitimate or otherwise which can only but result in embrassing the profession of encouraged. It is rather unfortunate that the offending processes originated from the hallowed chambers of a learned Senior Advocate of Nigeria who did not even see them as improper and unacceptable but went on and on to argue that the document which in law and supposed to speak for themselves, actually told a lie as to their authentication.
Per Onnoghen, JSC @ 12-13, paragraphs E-C, A – B, respectively.
In the instant case, I have extensively adverted my mind to the ruling of the lower court, contained at pages285-288 of the Record. Most especially, at page 28(lines 3-8) of the Record, the lower court was recorded to have conclusively held, thus:
In the light of the foregoing, I find no hesitation in demising the Claimant’s/Applicant’s application. Consequently the application dated the 9th June 2010 and parties are hereby enjoined to show commitment towards the speedy conclusion of this case. I so order.
I think, by the combined effect of the provisions of Order 15 Rule2 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (supra), sections 2 (i) & 24 of the Legal Practitioners Act (supra), and the authoritative decisions of the Supreme Court in OKAFOR VS. NWEKE (supra), it has become rather obvious that any process (es) purportedly signed by a legal practitioner not known to law (as in the instant case), are deemed to be incompetent.
As alluded to above, in the instant case, the 1st Appellant’s “FURTEHR AMENDED STATEMENT OF CLAIM” (contained at pages 2-9 of the Record) was purportedly signed by-
“ROUQ & Company Legal Practitioners 12, Oyinkan Abayomi Drive Ikoyi, Lagos, Nigeria”
that is unknown to law. Thus, the purported further amended statement of claim in question is rendered incompetent, and liable to be discountenanced. For that reason, the lower court was in error when it refused the 1st Appellant’s application for the amendment of the further amended statement of claim and ordered parties to-
“show commitment towards the speedy conclusion of this case”.
In the circumstance, the answer to issue 1 is inevitably in the negative, and same is hereby resolved in favour of the 1st Appellant.
ISSUE 2:
Arguably, having resolved the first issue in the 1st Appellant’s favour, there is no gainsaying, the fact that the second issue ought to equally be resolved in favour thereof. And the reason is not at all far-fetched. Having come to the most inevitable conclusion that the Appellants’ Further Amended Statement of claim is incompetent, it is obvious that it would not only be very difficult, but rather practically impossible for the Appellants to proceed to trial of the suit upon an obviously incompetent process. Undoubtedly, the pleadings of the Appellants are entirely predicated upon the averments contained in the statement of claim thereof. The lower court, in the circumstances, ought to have granted the amendment desperately needed and sought by the Appellants.
At this point in time, I would want to stress that if the writ of summons had equally not been signed by a legal practitioner known to law, like the Further Amended statement of claim, then the entire suit would have become incompetent and liable to be struck out. However, as alluded to above, the writ of summons was duly signed by a legal practitioner known to law, therefore it’s a valid and competent originating process. Indeed, it’s trite, that the filing of a statement of claims supercedes a writ of a summons. However, for a statement of claim to supercede a writ of summons, it must be valid (competent).In the instant case, the Further Amended Statement of claim is adjudged to be incompetent on the simple, albeit potent, ground that it was purportedly signed by a legal practitioner not known to law. See OKAFOR VS. NWEKE (supra). In the circumstances, the Further Amended Statement of claim in question shall be deemed incompetent, and liable to be discountenanced.
The order of the lower court enjoining the respective parties to-
“show commitment towards the speedy conclusion of this case”.
has undoubtedly amounted to an order in vain; a sheer futile adventure. Consequently, the entire proceedings of the lower court, right from December13, 2007 when the Further Amended Statement of claim was dated and filed, are annullity and liable to be set aside by this court.
Most undoubtedly, it’s very difficult, if not impossible, for the vexed issue of jurisdiction to crop up without bearing in mind the well cherished locus classicus – MADUKOLU VS. NKEMDILIM (1962) 1 All NLR.
Indeed, it’s in that notorious case the Supreme Court laid down the veritable principle, to the effect, that a court’s jurisdictional competence to entertain, hear and determine (adjudicate upon) a case is contingent upon the following factors or conditions:
a) That the court is properly constituted as to numbers and qualifications thereof;
b) That the processes are initiated in accordance with due process of the law; the subject matter of the case is within its jurisdiction, and there is no feature therein which prevents it from exercising jurisdiction; and
c) The case is initiated by the process of law, and upon satisfying any condition precedent to exercise of jurisdiction. (1962) 2 SCNLR 341;
Per Bairamian, FJ, See also STATE VS. ONAGORUWA (1992) 2 NWLR (Pt. 221) @ 57 paragraph E; MACFOY VS. UAC LTD (1961)13 WLR @ 1409, per Lord Denning, MR; TUKUR VS. GOV. GONGOLA STATE (1989) NWLR (Pt. 117) 517; EHIRIM VS. ISIEC (2008) 15 NWLR (Pt. 1111) 443. In the circumstance, the answer to issue 2 is equally in the negative, and the said issue is hereby resolved in favour of the Appellants.
Hence, having resolved both issues in favour of the Appellants, I have no hesitation in arriving at the most inevitable conclusion that the appeal is meritorious, and it’s hereby allowed by me.
CONSEQUENTIAL ORDERS:
Having allowed the appeal, I have deemed it not only expedient, but equally imperative, to order as follows:
1. That the entire proceedings of the lower court in suit No.ID/739/2003, inclusive of the pre-trial conference are hereby set aside.
2. That the ruling of the court below delivered on October 18, 2011 is hereby set aside.
3. That the suit No.ID/730/2003 is hereby remitted to the lower court for reassignment by the Chief Judge to another Judge for trial deno vo.
There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the judgment delivered by learned brother, Saulawa, J.C.A., in which I fully concur with these few words.
A court process – writ of summons, statement of claim et al signed by a law firm is incompetent and robs the court of the jurisdiction to adjudicate on it – See Abbas v. Tera (2013) 2 NWLR (Pt.1338) 284, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1346) 1, Nwaigwe and Ors. v. Okere (2008) 5 SCNJ 256, Enitan and Ors. v. The State (1986) 3 NWLR (Pt.30) 604.For the reason above and the exhaustive reasons stated in the said judgment, I too allow the appeal and abide by the consequential orders contained in the said judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the erudite judgment just delivered by my brother Ibrahim Mohammed Musa Saulawa J.C.A. and I agree entirely with his reasoning and conclusions.
Both issues distilled by the Appellants are resolved in their favour. The appeal is meritorious and same is allowed by me.
I also subscribe to the consequential order made in the lead judgment that there shall be no order as to costs.
Appearances
1st Appellant in Person
Banjo Abbas
For The 2nd AppellantFor Appellant
AND
Chief Ade Adeniyi With O. O. OgunkorodeFor Respondent
