ALHAJI ISIYAKU YAKUBU v. FEDERAL MORTGAGE BANK OF NIGERIA LIMITED
(2014)LCN/6882(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER AN INCURABLY DEFECTIVE ORIGINATING PROCESS WOULD ROB THE COURT OF JURISDICTION TO DETERMINE THE SUIT
There is no dearth of authorities in respect of this vexed issue of how and by whom processes of court should be signed. A few instances will suffice. In SLB Consortium Ltd v. N.N.P.C. (2011) 4 SCNJ 211, the Originating Summons in the suit on appeal before the Supreme Court was signed but, as in this case, there was no name of Counsel against it. The apex Court once again held that there must be strict compliance with the law as spelt out in Okafor v. Nweke (2007) 3 SCNJ 185. The latter case is now the locus classicus on this issue. Therein, the Notice of Appeal initiating the appeal at the Supreme Court against the decision of the Court of Appeal setting aside the proceedings of a General Court Martial was set aside as the said Notice was found to have been signed by a Law firm and not by a legal practitioner as defined in Section 2(1) & 24 of the Legal Practitioners Act, CAP L11 LFN, 2004. In following this decision in SLB Consortium Ltd v. N.N.P.C. (supra), Rhodes-Vivour, JSC, at page 228 of the Report held that, once it cannot be said who signed a process, it is incurably bad. He went on to give the following guidelines on how processes filed in court ought to be signed:
• The signature of Counsel, which may be any contraption;
• The name of Counsel clearly written;
• Who Counsel represents;
• Name and address of Legal Firm.
See also Okarika v. Samuel (2013) LPELR-19935(SC); (Unreported) Appeal Number SC. 251/2005, delivered on 08-02-13, per Muhammad, JSC; FBN Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444, per Fabiyi, JSC.
The law is now certainly trite that where court processes are signed by a legal practitioner in their partnership or firm’s names without indicating the name of the practitioner signing the process, such are incompetent and liable to be struck out. The name of the legal practitioner used in enrolling as a Solicitor and Advocate of the Supreme Court must necessarily be stated in the processes. It must also be emphasized, for the avoidance of any doubt, that there is a gulf of legal difference between the name of a legal practitioner simpliciter and the name of a firm of legal practitioners. They are not one and the same, but are different legal entities. One is not a substitute for the other!
This defect, which as aforesaid, is caught by the principle in Okafor v. Nweke (supra), is a fundamental error, and same is sufficient to render the entire suit at the lower Court incompetent. This means that the process is not only defective, but is incurably bad. That being the case, both the lower Court, as well as this Court, lack jurisdiction to entertain the matter as, one of the pre-conditions for the exercise of jurisdiction, has not been met. See the locus classicus on this: Madukolu v. Nkemdilim (1962) 1 ALL NLR 587. The law is trite, and plethora of authorities are well settled that, where a court is bereft of jurisdiction, any proceeding conducted without such power is an exercise in futility and therefore a nullity, as jurisdiction is the live wire of adjudication, As such, the lower Court was robbed of jurisdiction to entertain the suit in the first place. This, therefore also effectively knocks the bottom out of this Appeal. Per JUMMAI HANNATU SANKEY, J.C.A.
