ASSOCIATED BUS CO PLC. v. AIDOKO & ORS
(2022)LCN/15926(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/A/92/2018
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
ASSOCIATED BUS COMPANY PLC. APPELANT(S)
And
1. MRS JOSEPHINE AIDOKO 2. GRACE AIDOKO 3. ABEL AIDOKO (For Themselves And On Behalf Of Other Dependants Of Late David Aidoko) RESPONDENT(S)
RATIO:
WHETHER OR NOT THE PROVISIONS OF SECTION 24 OF THE LEGAL PRACTITIONERS ACT, 1990 CAN BE WAIVED
First and foremost, because Section 24 of the Legal Practitioners Act is not a discretionary statutory provision that can be waived, and even when a right is conferred solely for the benefit of an individual, alone, he cannot under these circumstances be able to forego the right or in other words waive it. The provisions of Sections 2 (1)and 24 as construed in the decisions of NWEKE VS. OKAFOR (supra) AND OKETADE V ADEWUNMI (supra) cannot in my considered opinion be waived by parties or even by the Court, because they are mandatory provisions. The situation is distinguishable from one where there is irregularity of service of a writ, in which case the party may reserve the right to waive his right of complaint; see THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & ORS (2009) 2-3 SC. (PT. 1139) OR (2009) 7 NWLR 97 SC.
The requirement for compliance with Section 24 of the Legal Practitioners Act, 1990 is of fundamental importance to the judicial process, because it has a direct effect on the legal processes that form the basis of a trial. You cannot put something on nothing and expect it to stand; MACFOY V. U.A.C. (2006) 16 WRN 185; N.N.B. PLC. VS. DENCLAG LTD. (2005) 4 NWLR (PT. 916) 549 AT 573; AND MADUKOLU VS. NKEMDILIM (SUPRA). PER MUSTAPHA, J.C.A
WHETHER OR NOT A COURT PROCESS SIGNED BY AN UNIDENTIFIED PERSON ON BEHALF OF A PARTY TO A SUIT IS DEFECTIVE
Furthermore, while it is true that Sections 2(1)and 24 clearly show that only a person whose name is on the roll of legal practitioners can practice law, it does not, by any stretch of imagination mean that such persons can simply take out a writ by merely inserting their names on such process. What is meant by ‘name’ presupposes name and an identifying signature, where the name is in print, but if the name is in ink, it should suffice; otherwise a stamp in ink will do just as well, or along with the name in print.
What is important, for this purpose is who signed the process itself, because the process should speak for itself. A process cannot be said to have been signed if the signatory’s identity is not discernible or in doubt. The signage is necessary, only where the name is not in ink; otherwise, the name has to be authenticated by a signature. This is what is meant by the “…legal practitioner simply writes his own name…” in SLB CONSORTIUM LTD V NNPC supra.
The Writ of Summons commencing this action and Claimants’ Statement of Claim filed were signed by proxy i.e. an unidentified or an unknown person for and on behalf of Chief Akin Olujimi, SAN, and therefore defective and incompetent; this much is clear from the decision of this Court in ONWARD ENTERPRISES LIMITED vs. OLAM INTERNATIONAL LIMITED (2010) All FWLR (Pt. 531) P. 1503, 1514, paras. A-E.
A Court process signed by an unidentified or unknown person is incompetent; an affidavit suggesting that someone who signed it on behalf of the person who ought to have signed it cannot suffice. The window open to the claimants at the point the defect was discovered was to go back to the registry of the lower Court and apply for a fresh writ of summons as opposed deposing to an affidavit, seeking essentially to amend a non-existent Writ of Summons as if something put on nothing can stand; see KIM V GOV OF PLATEAU STATE & ANR (2016) LPELR-40793 CA. PER MUSTAPHA, J.C.A
WHETHER OR NOT A WRIT OF SUMMONS IF FOUND DEFECTVE REMAINS DEFECTIVE AB INITIO
A Writ of Summons being an originating process if found to be defective remains defective ab initio and for all purpose and therefore not subject to amendment. It is very important for the writ of summons to indicate whether it is the plaintiff or the legal practitioner that applied for its issuance. Therefore, the application for the issuance of a writ of summons should contain the express name of the legal practitioner or the claimant/plaintiff who had applied for it, signed and dated. A Judge will not issue a writ of summons except there is an application to that effect by the claimant or his legal representative. I hold the view that without the signature and date on the application for the issuance of a writ of summons, the application becomes incompetent.
It is very important not to lose sight of the fact that the law is trite and settled that an initiating process must be signed either by the party or counsel acting on behalf of the party. A competent and valid initiating process is important in activating jurisdiction and competence of the Court. Conversely, an incompetent writ without more divests the Court of jurisdiction. A writ of summons is an originating process by means of which actions are commenced. The competence of such a process is a prerequisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon, see BRAITHWAITE VS. SKYE BANK PLC (2012) LPELR-15532 (SC).
The effect of an unsigned Court process has received judicial interpretations, some of the decisions slightly differ one from the other. In WILLIAMS & ANOR. VS. ADOLD STAMM INT’L. (NIG.) LTD. & ANOR. (2017) LPELR-41559 (SC), the apex Court held:
“There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for in Sections 2(1) and 24 of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. See: OKETADE VS ADEWUNMI (supra); OKAFOR VS NWEKE (supra): F.B.N. PLC. VS. MAIWADA (2013) 5 NWLR (PT. 1348) 1433. In SLB CONSORTIUM LTD. VS N.N.P.C. (2011) 9 NWLR (PT. 1252) 317 @ 331 B-332A, this Court affirmed its earlier decision in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA VS RAHMAN AKINDELE (1967) NMLR 263, and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.” PER MUSTAPHA, J.C.A
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, presided by Hon. Justice Salisu Garba in Suit No: FCT/HC/CV/1699/09, and delivered on the 8th of December, 2017.
FACTS IN BRIEF:
The Respondent commenced trial by a writ of summons for himself and on behalf of the family of the deceased, under the Fatal Accidents Act Cap 501 Laws of the Federation.
The Respondent claimed, the Appellant is the owner of a Bus with registration number XB 572 WER, negligently driven by one Innocent Eshillonu, on the 8th of July, 2006, causing it to run into another vehicle, with registration No: AZ 763 Enu, driven by one David Aidoko, causing him severe head injuries which led to his death.
The Respondent at trial claimed the following reliefs:
1. The sum of N50 Million naira as damages under the fatal Accidents Act for the benefit of the dependants of the deceased David Aidoko, who died as a result of the accident caused by the negligence of the driver of the defendant in the driving and management of the defendant’s luxurious bus No 573 WER along Jabi road Utako district, Abuja on the 8th of July, 2006.
2. Interest at the rate of 10% on the judgment debt from the date of judgment until payment.
The Respondent filed an amended statement of claim on the 21st of January, 2011, amending the name of the 1st plaintiff to read Mrs. Josephine Aidoko, it is at pages 586 to 591 of the supplementary record of appeal.
Pleadings having been exchanged, the Respondent called seven witnesses at trial, and tendered Exhibits A-C; while the defendant, Appellant, denied liability, and called five witnesses, and tendered Exhibits D-H.
While trial was going on, on the 9th of March, 2015, the Appellant filed an application, M/4236/15, praying for an order of the Court striking out the suit for incompetence and want of jurisdiction, on the ground that the originating process was incurably defective, for being signed by a legal practitioner, and for being an infraction against Section 2(1) of the Legal Practitioners Act, 2004; see pages 142 to 163 of the record of appeal.
Having considered arguments of counsel the lower Court dismissed the motion, proceeded to determine the suit and delivered its judgment on the 8th of December, 2017 in favour of the Respondents.
Dissatisfied, the Appellant appealed by a notice of appeal dated and filed on the 29th of December, 2017, on the following grounds, shorn of their respective particulars.
GROUNDS OF APPEAL:
GROUND 1: ERROR IN LAW
The learned Trial Judge erred in law by holding that the Writ of Summons and Statement of Claim not personally signed by counsel who purportedly issued it but signed for by an unknown person was properly signed and meets the requirements of Section 2(1) and 24 of the Legal Practitioners Act, 2004.
GROUND 2: ERROR IN LAW
The learned trial Judge erred in law when he failed to consider the Court of Appeal decision in BM LTD VS RCP LTD (2014) 34 WRN page 173 at page 175 to 176.
GROUND 3: ERROR IN LAW
The learned trial Court erred in law by wrongly rejecting in the evidence the Certified True Copy of Record of Proceedings of the Magistrate Court tendered in evidence during trial.
GROUND 4: ERROR IN LAW
The learned trial Court erred in law when he failed to look at the substance and relevance of the content of the record of proceedings tendered during trial by the Appellant as material evidence in the matter.
GROUND 5: ERROR IN LAW
The learned trial Court with all due respect erred in law when he erroneously in his judgment relied on wrong principle of law in arriving at his decision.
GROUND 6: ERROR IN LAW
The judgment is against the weight of evidence.
From the said grounds, the following issues were formulated for determination on behalf of the appellant in the brief filed on the 23rd of March, 2018:
1. Whether the Writ of Summons and Statement of Claim filed in this suit at the lower Court was competent to grant this Honorable Court jurisdiction to adjudicate on this matter having not being personally signed by counsel who purportedly issued the Writ and Statement of Claim but signed for by an unknown person.
2. Whether the Writ of Summons and Statement of Claim filed in this suit at the trial Court which was signed for by an Unknown Person not known to law and whose identity and qualification are unknown is not defective and contrary to Sections 2(1) and 24 of the Legal Practitioners Act, 2004 thereby denying the trial Court jurisdiction to adjudicate on the matter.
3. Whether the Trial Court was not in error in its failure to be guided by the judicial precedent regarding the principles of law as espoused in the case of BM LTD VS. RCP LTD (2014)36 WRN page 173 @ 175 to 176.
4. Whether the trial Court was not in error in assuming jurisdiction to entertain this suit based on principles strange to law.
5. Whether the trial Court was not in error by wrongly rejecting in evidence the Certified True Copy of Record of Proceedings of the Magistrate Court tendered in evidence by the Appellant thereby denying fair hearing to the Appellant.
6. Whether the trial Court was not in error in reaching his judgment on wrong principles of law without properly evaluating Appellant’s evidence before him.
7. Whether the judgment of the trial Court was not against the weight of evidence adduced before the trial Court.
In response, the following issues were formulated for determination on behalf of the Respondent in the brief filed on the 14th day of July, 2020, but deemed properly filed on the 28th September, 2021:
(i) Whether considering the circumstances of this and the provisions of Section 2(1) and 24 of the Legal Practitioners Act, the lower Court was not right to assume the jurisdiction to determine this suit.
(ii) Whether the lower Court’s rejection in evidence of the appellant’s record of proceedings of a Magistrate Court matter which was certified by the registry of the FCT High Court was wrong and amounted to a denial of fair hearing for the appellant.
(iii) Whether the lower Court reached its judgment in this case on wrong principles of law and without proper evaluation of the evidence before the Court.
(iv) Whether the judgment of the lower Court in this case was against the weight of the evidence adduced before the Court.
The appeal will be decided on the issues formulated on behalf of the Appellant.
ISSUES ONE & TWO:
1. Whether the Writ of Summons and Statement of Claim filed in this suit at the lower Court was competent to grant this Honorable Court jurisdiction to adjudicate on this matter having not being personally signed by counsel who purportedly issued the Writ and Statement of Claim but signed for by an unknown person.
2. Whether the Writ of Summons and Statement of Claim filed in this suit at the trial Court which was signed for by an Unknown Person not known to law and whose identity and qualification are unknown is not defective and contrary to Sections 2(1) and 24 of the Legal Practitioners Act, 2004 thereby denying the trial Court jurisdiction to adjudicate on the matter.
It is submitted for the Appellant on this issue that jurisdiction can only be assumed by a Court after the suit is initiated by due process of law; MADUKOLU V NKEMDILIM (2001) 46 WRN PG 1; and that the trial Court lacked jurisdiction in this case because the writ of summons and statement of claim was signed for and on behalf of Chief Akin Olujimi, SAN, and there is nothing to suggest that the person who signed for chief Olujimi is a legal practitioner entitled to practice law in Nigeria; learned counsel referred the Court to SLB CONSORTIUM V NNPC (2011) 3-4 MJSC AND FIRST BANK OF NIGERIA PLC & ANR V ALH SALMANU MAIWADA (2013) 5 NWLR PART 1348 PAGE 444.
That it is difficult to ascertain who signed the writ of summons and statement of claim filed in this case, on behalf of Chief Akin Olujimi, as a result, both the writ of summons and statement of claim are defective and therefore incompetent, thus denying the lower Court the jurisdiction to adjudicate on the matter; learned counsel referred the Court to IWUNZE V OKENWA (2015) 29 WRN 68 AT PAGE 74 AND OKAFOR V NWEKE (2007) 19 WRN 1.
It is submitted in response that at the time the Appellant filed its motion challenging the jurisdiction of the lower Court on grounds of incompetence of the Respondent’s originating process on the 9th of March, 2015, the Respondents had closed their case and the Appellant had opened its defense. Learned counsel contends by that, the Appellant had waived the right to object any irregularity in the signature of counsel who signed the processes.
That there are two types of jurisdiction, substantive and procedural, and the Appellant’s objection in this case relates to procedural jurisdiction, which can be waived, unlike substantive jurisdiction which cannot be waived; learned counsel referred the Court to ATT. GEN KWARA STATE & ANR V ALH SAKA ADEYEMO & ORS (2016) 7 SC PART 11 PAGE 149.
Learned counsel submits also that the Appellant’s complaint under grounds 1 and 2 of the grounds of appeal is that the Respondent’s writ of summons and statement of claim were not personally signed by Chief Akin Olujimi, SAN, who issued the processes, contrary to Section 2 (1) Legal Practitioners Act; but at the time the Appellant raised this complaint, the Respondent had participated fully in the proceedings, having closed its case, and that even if Chief Akin Olujimi did not personally sign the process, the Appellant as the defendant clearly condoned the procedurally defective writ of summons and statement of claim, and thus waived its right to object; he referred the Court to HERITAGE BANK LTD V BENTWORTH FINANCE NIG. LTD (2019) ALL FWLR PART 997 PAGE 1.
That, notwithstanding learned counsel’s submissions, what is required is merely the name and not the signature, especially as it is only the name that appears on the roll of legal practitioners; this is more so, it is argued, as the Appellant admitted that the writ and statement were issued by Chief Akin Olujimi, SAN.
It is submitted in addition that the Respondent’s counter affidavit filed on the 28th of April, 2015, deposed at paragraph 5 that the originating processes were signed by one Mrs. Anne Achu, a legal practitioner, standing on the instruction of Chief Akin Oiujimi, and that the deposition was not contradicted by the Appellant, thus admitting same as true; learned counsel referred the Court to APC V INEC (2015) ALL FWLR PART 771 PAGE 1420.
Learned counsel further submitted, while referring to Sections 2 (1) and 24 of the Legal Practitioners Act that only a person whose name is on the roll of legal practitioners can practice law; and that the Respondents complied with the said provisions of the law; he referred the Court to OKAFOR V NWEKE (2007) ALL FWLR PART 368 PAGE 1016 AND SLB CONSORTIUM LTD V NNPC (2011) AFWLR PART 583 PAGE 1911.
That failure of Chief Akin Olujimi to personally sign the process has not occasioned any miscarriage of justice against the Appellant, and that technical justice is no justice at all; learned counsel referred the Court to EKPENETU V OFEGOBI (2012) 15 NWLR PART 276 PAGE 1333.
RESOLUTION OF ISSUES 1 & 2:
At the risk of prolixity, it is once again necessary to point out that the Appellant’s complaint under grounds 1 and 2 of their notice and grounds of appeal is that the Respondents’ writ of summons and statement of claim were not personally signed by Chief Akin Olujimi, SAN, who issued the processes, contrary to Sections 2(1) and 24 of the Legal Practitioners Act, 1990, and that the processes were signed by an unknown person.
The Respondent’s arguments, as well as the Appellant’s are all elaborately stated. The consequence, if the Appellant’s argument prevails is that the suit is incompetent, at the very least.
It is not disputed that the writ of summons upon which the instant case was initiated for trial and upon which every other subsequent process or processes came to be was filed, and signed, for and on behalf of Chief Akin Olujimi, SAN. Learned counsel for the Respondents contends that the Appellant waived its right to complain about the non-compliance with Sections 2(1)and 24 of the Legal Practitioners Act, by participating in the proceedings, only to file a motion much later. That argument, with all due respect, falls flat on its face, because there is no question of waiver of jurisdiction here, as is being urged, if at all there is any condition under which jurisdictional matter can be waived by parties. First and foremost, because Section 24 of the Legal Practitioners Act is not a discretionary statutory provision that can be waived, and even when a right is conferred solely for the benefit of an individual, alone, he cannot under these circumstances be able to forego the right or in other words waive it. The provisions of Sections 2 (1)and 24 as construed in the decisions of NWEKE VS. OKAFOR (supra) AND OKETADE V ADEWUNMI (supra) cannot in my considered opinion be waived by parties or even by the Court, because they are mandatory provisions. The situation is distinguishable from one where there is irregularity of service of a writ, in which case the party may reserve the right to waive his right of complaint; see THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & ORS (2009) 2-3 SC. (PT. 1139) OR (2009) 7 NWLR 97 SC.
The requirement for compliance with Section 24 of the Legal Practitioners Act, 1990 is of fundamental importance to the judicial process, because it has a direct effect on the legal processes that form the basis of a trial. You cannot put something on nothing and expect it to stand; MACFOY V. U.A.C. (2006) 16 WRN 185; N.N.B. PLC. VS. DENCLAG LTD. (2005) 4 NWLR (PT. 916) 549 AT 573; AND MADUKOLU VS. NKEMDILIM (SUPRA).
The Respondents’ counter affidavit filed on the 28th of April, 2015, at pages 596 to 597 of the supplementary record of appeal deposed at paragraph 5 that the originating processes was signed by Mrs. Anne Achu, a legal practitioner, on the instructions of Chief Olujimi, SAN, and that since that deposition was not challenged, the Court has to accept it as true. This argument with respect stretches both common sense and logic, because an affidavit cannot cure such defect in a writ of summons, even if it is unchallenged as contended for the Respondents.
Furthermore, while it is true that Sections 2(1)and 24 clearly show that only a person whose name is on the roll of legal practitioners can practice law, it does not, by any stretch of imagination mean that such persons can simply take out a writ by merely inserting their names on such process. What is meant by ‘name’ presupposes name and an identifying signature, where the name is in print, but if the name is in ink, it should suffice; otherwise a stamp in ink will do just as well, or along with the name in print.
What is important, for this purpose is who signed the process itself, because the process should speak for itself. A process cannot be said to have been signed if the signatory’s identity is not discernible or in doubt. The signage is necessary, only where the name is not in ink; otherwise, the name has to be authenticated by a signature. This is what is meant by the “…legal practitioner simply writes his own name…” in SLB CONSORTIUM LTD V NNPC supra.
The Writ of Summons commencing this action and Claimants’ Statement of Claim filed were signed by proxy i.e. an unidentified or an unknown person for and on behalf of Chief Akin Olujimi, SAN, and therefore defective and incompetent; this much is clear from the decision of this Court in ONWARD ENTERPRISES LIMITED vs. OLAM INTERNATIONAL LIMITED (2010) All FWLR (Pt. 531) P. 1503, 1514, paras. A-E.
A Court process signed by an unidentified or unknown person is incompetent; an affidavit suggesting that someone who signed it on behalf of the person who ought to have signed it cannot suffice. The window open to the claimants at the point the defect was discovered was to go back to the registry of the lower Court and apply for a fresh writ of summons as opposed deposing to an affidavit, seeking essentially to amend a non-existent Writ of Summons as if something put on nothing can stand; see KIM V GOV OF PLATEAU STATE & ANR (2016) LPELR-40793 CA.
A Writ of Summons being an originating process if found to be defective remains defective ab initio and for all purpose and therefore not subject to amendment. It is very important for the writ of summons to indicate whether it is the plaintiff or the legal practitioner that applied for its issuance. Therefore, the application for the issuance of a writ of summons should contain the express name of the legal practitioner or the claimant/plaintiff who had applied for it, signed and dated. A Judge will not issue a writ of summons except there is an application to that effect by the claimant or his legal representative. I hold the view that without the signature and date on the application for the issuance of a writ of summons, the application becomes incompetent.
It is very important not to lose sight of the fact that the law is trite and settled that an initiating process must be signed either by the party or counsel acting on behalf of the party. A competent and valid initiating process is important in activating jurisdiction and competence of the Court. Conversely, an incompetent writ without more divests the Court of jurisdiction. A writ of summons is an originating process by means of which actions are commenced. The competence of such a process is a prerequisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon, see BRAITHWAITE VS. SKYE BANK PLC (2012) LPELR-15532 (SC).
The effect of an unsigned Court process has received judicial interpretations, some of the decisions slightly differ one from the other. In WILLIAMS & ANOR. VS. ADOLD STAMM INT’L. (NIG.) LTD. & ANOR. (2017) LPELR-41559 (SC), the apex Court held:
“There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for in Sections 2(1) and 24 of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. See: OKETADE VS ADEWUNMI (supra); OKAFOR VS NWEKE (supra): F.B.N. PLC. VS. MAIWADA (2013) 5 NWLR (PT. 1348) 1433. In SLB CONSORTIUM LTD. VS N.N.P.C. (2011) 9 NWLR (PT. 1252) 317 @ 331 B-332A, this Court affirmed its earlier decision in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA VS RAHMAN AKINDELE (1967) NMLR 263, and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.”
Now, it is vehemently contended for the Respondents that, the fact that Chief Akin Olujimi, SAN had written his name on the process followed by the firm’s name is sufficient. Learned counsel relied on SLB CONSORTIUM LTD V NNPC supra. I hasten to add that printing learned silk’s name on the process is not what is meant by ‘writing’ in this case.
To further emphasis the fact that originating processes taken out by a legal practitioner must be signed by such legal practitioner as prescribed by the Legal Practitioner’s Act, and failure to do so divests the Court of jurisdiction, this Court held in JULIUS BERGER (NIG.) LTD. V UDOFIA (2017) LPELR-42638 (CA), that:
“…it is mandatory that for a writ of summons to be valid so as to vest a trial Court with jurisdiction to entertain this case, the said writ of summons must either be signed by the Legal Practitioner representing the Claimant or by the Claimant himself. Sections 2 and 24 of the Legal Practitioners Act, Cap, 207, Laws of the Federation of Nigeria, 1990 as re-enacted in 2004 makes it also mandatory that where a plaintiff is represented by a legal practitioner in any suit, the originating process therein must be signed and endorsed with the name of a solicitor whose name is on the roll of legal practitioners certified to practice in Nigeria, The writ of summons in this suit was not signed by either the claimant or his Legal practitioner as prescribed by law. It is therefore not initiated by due process of law, which is a vital condition that must be fulfilled before the trial Court can exercise its jurisdiction. See OKARIKA VS SAMUEL (2013) 7 NWLR (PT. 1352) PAGE 19 AT 43 PARAS A-C where Mary Peter-Odili held: “Once an initiating process, be it writ of summons or Notice of appeal, is not signed or authenticated either by the litigating party or the Legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court ousted… the defect is taken as incurable.”
Similarly, the Supreme Court restated and conclusively resolved the vexed issue of how to sign an originating process in SLB CONSORTIUM LTD. VS. NNPC (2011) 3-4 MJSC, 145 at 149, and finally in SKY POWER EXPRESS LTD V UNITED BANK FOR AFRICA & ORS (2022) LPELR-56590-SC where it held:
“…Once it cannot be said who signed the process, it is incurably bad… All the 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.”
The failure to appropriately sign the writ of summons and statement of claim in this case is not a mere irregularity in procedure, but a matter of substantive law, and it cannot be waived. It touches on the jurisdiction of the Court to hear and determine the suit. The failure robbed the lower Court of the jurisdiction to hear and determine the suit. The requirement of law stems from the Rules of the High Court and the Legal Practitioners Act and both impose a duty on parties and counsel representing them to comply, failure to do so means a suit cannot be said to have been duly initiated and consequently unable to activate the jurisdiction of the Court. Signing of initiating processes is a condition precedent to competence and jurisdiction of the Court. The Legal Practitioners Act is very clear in Section 2 (1) thereof it provides: “A person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll”
It is an Act of the National Assembly which Section 243 of the Constitution refers to. All these provisions are mandatory. The consequence of flouting the mandatory provisions of the Constitution and statutes is that the decision in such violation is illegal, null and void; see: the apex Court in the case of IFEZUE VS. MBADUGHA & ANOR. (1984) 5 SC. (1984) ALL NLR 256.
The effect of failure to strictly comply with a statutory mandatory requirement relating to the procedure of commencing a proceeding is that the trial or proceeding ought to be declared a nullity; See KAJUBO VS. THE STATE (1988) NWLR (PT. 73) 721, because such defect is regarded as an illegality, and not a mere irregularity; See: THE STATE VS. GWONTO (1983) ALL NLR 109 (1983) 3 SC. 62; SANMABO VS. THE STATE (1967) NMLR 310 @ 316-317.
It follows from all that I have said above, that the trial Judge who conducted the trial and gave a judgment based on a worthless and invalid writ of summons acted without jurisdiction. The trial was therefore an exercise in futility.
It is the long established law that once a process is invalid, no amount of sophistry or ingenuity can be employed to save it. This is because, what is void is void. It is for these reasons that I now resolve Issues one and two in favour of the Appellant, against the Respondents. Having resolved these issues in favour of the Appellant, I see neither need nor necessity for proceeding to resolve the other issues; they have become mute in the circumstances.
Flowing from the above, the appeal succeeds per force, consequently, the claim before the trial Court must be struck out for lack of jurisdiction. It is accordingly struck out.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, Mohammed Mustapha, JCA, and I am in total agreement with the reasoning and conclusion reached therein
I therefore also find the appeal meritorious as the Court lacks jurisdiction. The claim is hereby accordingly struck out.
I make no order as to costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: All Court processes must be signed in the manner prescribed by Sections 2 (1) and 24 of the Legal Practitioners Act, id est, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner: SLB CONSORTIUM LTD vs. NNPC (2011) LPELR (3074) 1 at 16. The name and signature of a person signing a Court process are fundamental and indispensable. The importance of signing a Court process by the legal practitioner issuing it cannot be understated. The verb ‘sign’ denotes the identification of a document, record, et al, by means of a signature mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. Similarly, the noun ‘signature’ is defined as denoting the act of putting one’s name at the end of an instrument to attest its validity: see Black’s Law Dictionary (8th ed.), ONWARD ENTERPRISES LTD vs. OLAM INT’L LTD (2010) ALL FWLR (PT 531) 1503 at 1512 and AROMIRE vs. AJOMAGBERIN (2011) LPELR (3809) 1 (CA). So the signing of a Court process is an integral part of the issuance of the Court process since it is by signing that the legal practitioner authenticates and validates the process as coming from him. It is not enough to merely scribble a signature without indicating the name and designation of such a person. See AROMIRE vs. AJOMAGBERIN (supra) and PEAK MERCHANT BANK LTD vs. NDIC (2011) 12 NWLR (PT 1216) 253.
It seems to be an established principle that any person signing, endorsing or franking a Court process on behalf of a firm or a senior in chambers is required to clearly state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a Clerk, Messenger or Secretary would sign processes filed in Court on behalf of counsel in chambers. Put differently, the law is now certainly trite that where Court processes are signed by a legal practitioner in their partnership or firm’s names or on behalf of a senior in chambers, without indicating the name of the legal practitioner signing the process, such are incompetent and liable to be struck out.
By all odds, there is a signature above the name of the learned senior counsel, Chief Akin Olujinmi, on the Writ of Summons and Statement of Claim in this matter, but the signature is indecipherable that it cannot be ascribed to the name of a legal practitioner on the Roll of Legal Practitioners; and the name of the person who signed on behalf of the senior counsel is not subscribed on the processes. The effect of any Court process signed other than in the manner prescribed by the Legal Practitioners Act is that the process is null and void. Where the process is an originating process or pleading, any proceedings predicated on the null process would be of no consequence since it would be based on nothing as there would be no valid processes on record to sustain the case vide OKPE vs. FAN MILK PLC (2017) 2 NWLR (PT 1549) 282 and OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521.
The foregoing had been the settled legal position as it relates to a Court process which had not been signed in the name of a legal practitioner. It was a nullity.
However, the Respondents raise the concept of waiver as the objection to the Court processes was only made after the Respondents had closed their case at the lower Court. Without a doubt, in HERITAGE BANK vs. BENTWORTH FINANCE (2018) 9 NWLR (PT 1625) 420 at 434-435 relied on by the Respondents, the apex Court seemed to have ameliorated the fatal consequences as it relates to pleadings, when it held that it was a procedural irregularity which can be waived where an objection was not raised to the defective process at the earliest opportunity. So, based on the decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) the defective Statement of Claim in this matter would have been saved for having been waived since there was objection to the propriety of the said Statement of Claim was only raised after the Appellant had participated in the proceedings and the Respondents had closed their case. But it is not just the Statement of Claim that is defective in this matter; the originating process, the writ of summons is also defective and nothing could have been built on the said defective originating process.
Howbeit, it would appear that the apex Court has reverted to the pre-HERITAGE BANK vs. BENTWORTH FINANCE legal position. In SALAMI vs. MUSE (2019) 3 NWLR (PT 1689) 301, it was re-asserted that the provisions of Sections 2 (1)and 24 of the Legal Practitioners Act affect the jurisdiction of Court as a matter of substantive law and not as a matter of procedural law and so cannot be waived in certain cases. It was held in no uncertain terms that the Statement of Defence filed in a firm name in the said matter was incompetent, leaving only the Statement of Claim as the valid and proper pleadings in the action.
Furthermore, recently in AJIBODE vs. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475, the apex Court emphatically held that any document or process for filing in Court (not just an originating process), must be signed as contemplated by Sections 2 (1) and 24 of the Legal Practitioners Act and that any other mode of signing and authenticating a legal process renders the process a nullity, and such a process does not exist in the eyes of the law. Referring to its earlier decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) which held that such an irregularity can be waived, Ngwuta, JSC at page 501 of the said case of AJIBODE vs. GBADAMOSI (supra) asseverated:
“…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 Court 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.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The extant legal position would therefore seem to be that any process filed in Court which has not been signed by a legal practitioner is null and void and it is an irregularity which cannot be waived as it relates to substantive law, not procedural law. This is a departure from the regime expounded in HERITAGE BANK vs. BENTWORTH FINANCE (supra). It is instructive that Eko, JSC who explicated the concept of waiver in HERITAGE BANK vs. BENTWORTH FINANCE was in the panel of the apex Court that decided AJIBODE vs. GBADAMOSI (supra). The other Justices on the panel did not go along with him on the concept of waiver consequent upon which he rendered a dissenting opinion in AJIBODE vs. GBADAMOSI (supra).
The lead judgment of my learned brother, Mohammed Mustapha, JCA, which I read in draft, has espoused the regnant legal position as laid down in the more recent cases of SALAMI vs. MUSE (supra) and AJIBODE vs. GBADAMOSI (supra). I am allegiant to the reasoning and conclusion in the said lead judgment that the Writ of Summons and Statement of Claim filed in this matter are incompetent having been signed by an unknown person. Since such a process does not exist and is unknown to law, they could not have spawned any competent proceedings on which a valid judgment could have been entered by the lower Court. Consequently, I join in allowing the appeal, and on the same terms as set out in the lead judgment.
Appearances:
O. E. Olelewe For Appellant(s)
Ifeanyi Egwuasi with him Ademola Owolabi For Respondent(s)