CHAWALEKS NIGERIA LIMITED & ORS v. NIGERIA DEPOSIT INSURANCE CORPORATION & ANOR
(2019)LCN/12655(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/766/2014
RATIO
LEGAL PRACTITIONERS: THAT ONLY THE LEGAL PRACTITIONERS CAN ISSUE COURT PROCESS
“The legal position is now settled beyond peradventure that it is only a legal practitioner qualified to practice law in Nigeria that can issue Court processes by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act. This legal position has been settled since the decision in OKAFOR vs. NWEKE (2007) 10 NWLR (PT. 1043) 521 where it was held that for a person to be qualified to practice as a legal practitioner, he must have his name on the Roll of Legal Practitioners and that what the law provides for is that it is the name of the legal practitioner that is on the Roll and not his signature. In the circumstances of the OKAFOR vs. NWEKE case the process issued in the name of J. H. C. Okolo, SAN & Co. was set aside for being incompetent since J. H. C. Okolo, SAN & Co. was not a name on the Roll of Legal Practitioners. The decision in OKAFOR vs. NWEKE was followed by the Supreme Court in OGUNDELE vs. AGIRI (2009) 18 NWLR (PT. 1173) 219 at 246 247 where a process issued in the name of Ajibola & Co., was held to be incompetent.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION: THE COMPETENCE OF THE COURT
“The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT. 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT. 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction. Therefore since the originating summons in this matter is defective and incompetent, the lower Court did not have the jurisdiction to entertain the action since it was not initiated by due process of law, and the incompetent process was a feature that prevented the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. CHAWALEKS NIGERIA LIMITED
(In receivership)
2. MR. OLANREWAJU AYODEJI WRIGHT
3. MR. CHARLES ADEPOJU – Appellant(s)
AND
1. NIGERIA DEPOSIT INSURANCE CORPORATION
(Party substituted by Order of Court of 26/11/08)
2. OLUSEGUN OLUMUYIWA – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal was spawned by the action at the Federal High Court, Lagos Division in SUIT NO. FHC/L/CS/405 2000: CITY EXPRESS BANK LIMITED & ANOR vs. CHAWALEKS NIGERIA LIMITED & ORS. The action was for the recovery of the amount outstanding on the facility which was granted to the Appellants herein, who were the Defendants at the lower Court. City Express Bank, the original 1st Plaintiff at the lower Court was in the course of the proceedings at the lower Court substituted with Nigeria Deposit Insurance Corporation, the 1st Respondent on record.
The action was commenced by Originating Summons which is at pages 8-9 of Volume I of the Records. However, the lower Court later ordered parties to file and exchange pleadings. The Appellants then set up a counterclaim. The matter went to trial and after the inter partes hearing at which testimonial and documentary evidence was adduced, the lower Court entered judgment in favour of the Respondents. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same.
The judgment of the lower Court which was delivered on 20th March, 2014 is at pages 1382 to 1410 of Volume III of the Records, while the Notice of Appeal is at pages 1411 to 1418 of Volume III of the Records.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants Brief of Argument was filed on 29th September, 2014, while the Respondents Brief of Argument was filed on 6th May 2016, but deemed as properly filed on 24th May, 2018. At the hearing of the appeal, the Appellants, though duly served with a hearing notice were absent, consequent upon which the Court invoked the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016, to treat the appeal as having been argued by the Appellants. The Respondents Counsel then identified the relevant briefs and urged the Court to dismiss the appeal.
The Appellants distilled six issues for determination as follows:
1. Whether considering the decision in the case of Emmanuel Okafor & Ors V. Augustine Nweke (2007) 3 S.C. (pt. II) 15, the learned trial Judge was right to have held that the originating process dated 26th April, 2000 was properly filed within the context of Section 2(1) of the Legal Practitioners Act.
2. Whether the learned trial judge was right to have found the Deed of Debenture to be competent and held the Appellants liable under the Deed of Debenture?
3. Whether the learned trial judge was right to have entered judgment in favour of the Respondents and found the Appellants liable to pay the judgment in the sum of N47,135,498.15 amongst other orders.
4. Whether the learned trial judge was right to have held that the 1st Respondent was by the wording of Exhibit NDIC 3 entitled to have charged compound interest in light of the case ofUBN v. Ozigi (1994) 3 [sic] (pt.333) 385.
5. Whether in the face of Exhibit NDIC 5 the learned trial judge ought to have granted the Respondents 1st relief with interest and subsequently granted the alternative relief in anticipation of if the Appellants do not abide by relief 1 of the claim which the court had already granted.
6. Whether the failure of the learned trial judge to determine the Appellants Counterclaim in one way or the other amounts to a breach of the Appellants right to fair hearing
The Respondents on their part formulated five issues for determination, namely:
1. Whether the learned trial judge was right when he held that the Originating Process dated 26th April, 2000 satisfied the requirement of S.2 Legal Practitioners Act, and therefore is valid in law.
2. Whether in view of the pleadings and uncontroverted evidence before the trial Court, the learned trial judge was right to hold that the 1st Appellant is indebted to the 1st Respondent, and liable to pay the sum of N47,135,498.15 to the 1st Respondent being the outstanding amount due under the Facility Agreement.
3. Whether having regard to the Facility Agreement (Exhibit NDIC 2) and the Debenture Deed (Exhibit NDIC 3), the learned trial judge was right to hold that the 1st Respondent could charge compound interest on the credit facility granted to the 1st Appellant.
4. Whether having regard to the Facility Agreement (Exhibit NDIC 2) and Chawaleks Nigeria Limiteds Statement of Account Exhibit NDIC 5, the learned trial judge was right to have granted the 1st and 2nd Respondents relief with interest and the alternative reliefs if the Appellants do not abide by the 1st and 2nd Reliefs.
5. Whether the learned trial judge considered and determined the Appellants counter-claim
The starting point in the consideration and resolution of the disceptation in this appeal is issue number one distilled by the parties. The said issue number one even through differently worded by the parties is threshold in nature as it challenges the originating process by which the action was initiated at the lower Court. On account of its being succinct the formulation of the issue by the Respondent will be our guide. The manner of resolution of the said issue will be the desiderata with respect to the other issues raised. This is so because a resolution of the said issue number one in favour of the Appellants will mean that the action is incompetent, and it will have the consequence of rendering otiose and academic the other issues raised.
ISSUE NUMBER ONE
Whether the learned trial judge was right when he held that the Originating Process dated 26th April, 2000 satisfied the requirement of Section 2 of the Legal Practitioners Act, and therefore valid in law.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that having challenged the competence of the Originating Summons, the lower Court held that the name Shakira Odogwu was written over and above Messrs Kayode Sofolas Chambers on the Originating Summons and that it has not been shown that the said Shakira Odogwu is not a person that can practice law in Nigeria. The Appellants maintain that the Originating Summons was not signed by a legal practitioner whose name is on the Roll as required by Sections 2 (1) and 24 of the Legal Practitioners Act. The cases of PEAK MERCHANT BANK LTD vs. NDIC Appeal No. CA/L/572/2005 (unreported) delivered on 14th May 2010, ACB vs. HASTON (NIG) LTD (1997) 8 NWLR (PT. 515) 110 at 125 -126, BRAITHWAITE vs. SKYE BANK (2012) 12 SC (PT. 1) at 13 to 16 and FBN vs. MAIWADA (2013) 6 CLRN 26 were referred to. It was conclusively submitted that the effect of the originating processes not having been signed by a legal practitioner is that the processes are a nullity ab initio, and that being incurably bad, nothing can be built on it vide MACFOY vs. UAC LTD (1962) AC 152 at 160.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents assert that the Originating Summons is valid and competent having satisfied the requirement of the law as the same was signed by Shakirah Odogun, a legal practitioner in Kayode Sofolas Chambers, by writing her name on the process. The cases of SLB vs. NNPC (2011) 9 NWLR (PT. 1252) 317 and REGD TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA vs. AKINDELE (1967) NMLR 263 were relied upon. It was opined that it could be verified from the Roll of Legal Practitioners whether the name of the signatory in issue is that of a qualified legal practitioner.
RESOLUTION
Now, Section 2 (1) of the Legal Practitioners Act provides:
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.
Equally, Section 24 of the Legal Practitioners Act defines a legal practitioner as meaning:
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 purposes of any particular office or proceedings.
The legal position is now settled beyond peradventure that it is only a legal practitioner qualified to practice law in Nigeria that can issue Court processes by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act. This legal position has been settled since the decision in OKAFOR vs. NWEKE (2007) 10 NWLR (PT. 1043) 521 where it was held that for a person to be qualified to practice as a legal practitioner, he must have his name on the Roll of Legal Practitioners and that what the law provides for is that it is the name of the legal practitioner that is on the Roll and not his signature. In the circumstances of the OKAFOR vs. NWEKE case the process issued in the name of J. H. C. Okolo, SAN & Co. was set aside for being incompetent since J. H. C. Okolo, SAN & Co. was not a name on the Roll of Legal Practitioners. The decision in OKAFOR vs. NWEKE was followed by the Supreme Court in OGUNDELE vs. AGIRI (2009) 18 NWLR (PT. 1173) 219 at 246 247 where a process issued in the name of Ajibola & Co., was held to be incompetent.
Also in OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT. 1195) 63 at 73H 75H, a process issued in the name of Olujimi & Akeredolu was held to be incompetent. Furthermore, in SLB CONSORTIUM vs. NNPC (supra) the Supreme Court set aside a process issued in the name of Adewale Adesokan & Co.
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 (SC). 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 ones name at the end of an instrument to attest its validity: See BLACKS LAW DICTIONARY (8TH EDITION), ONWARD ENTERPRISES LTD vs. OLAM INTL 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 Appeal No. CA/572/05: PEAK MERCHANT BANK LTD vs. NDIC (unreported) delivered on 14th May 2010.
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 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.
The originating summons in this matter is shown at page 9 of the Records to have been taken out by MESSRS KAYODE SOFOLAS CHAMBERS. It is not disputed that this is a firm name which is not on the Roll of Legal Practitioners. The crux of the disceptation is whether the name of a legal practitioner was written as signature above MESSRS KAYODE SOFOLAS CHAMBERS on the Originating Summons. For the lower Court, the said signature is the name, Shakira Odogwu. The Respondents on their part contend that the said signature is the name, Shakirah Odogun. Already, from the name ascribed to the signature by the lower Court and that ascribed to it by the Respondents, it is apparent that the signature which appears on the process is not legible enough to be ascribed a clear name.
Undoubtedly, in REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE (supra) the apex Court held that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of the firm in which he carries out his practice. But this decision has to be properly contextualised in order to appreciate the principle it established. The Court process in that matter was issued in the name of J. A. Cole & Co., a name, which like in this matter, is not on the Roll of Legal Practitioners, but the Supreme Court held that the Court process was saved by the fact that even though J. A. Cole & Co. was not on the Roll of Legal Practitioners, J. A. Cole, Esq., who practices in that name wrote his name as the signature on the Court process. So, it was held that the process having been signed by the name J. A. Cole, a duly registered legal practitioner written legibly on it, saved the Court process. So in that case, the name written as signature was clear and was ascribed to a legal practitioner. Recently in WILLIAMS vs. ADOLD/STAMM INT’L (NIG) LTD (2017) LPELR (41559) 1 at 15-17 the apex Court per Kekere-Ekun, JSC 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 and 24 (2) (1) 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. ln S.L.B. 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.
On page 14 of the applicant’s written address, at the bottom of the page, the handwritten name, LADI WILLIAMS appears above two names, Chief Ladi Rotimi Williams, SAN and Chris I. Eneje the name LADI Williams, though handwritten, is very clear and legible. The respondents are not contending that Chief Ladi Rotimi Williams, SAN is not the same person as LADI WILLIAMS who signed the process or that the person who signed the process is not a legal practitioner whose name is on the roll of legal practitioners entitled to practice law in Nigeria. I am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll.
Therefore on the state of the authorities, it seems that where the name of a legal practitioner is clearly and legibly written as signature over a firm name, it would serve to save the process. I have undertaken an insightful, methodical and painstaking examination of the Originating Summons on page 9 of the Records; I am unable to make out the signature thereon to be the name Shakira Odogwu as found by the lower Court, or Shakirah Odogun as contended by the Respondents. Paucis verbis, the signature on the Originating Summons is not sufficiently legible in order for it to be ascertained whether the signatory is a legal practitioner or not as the Roll of Legal Practitioners contains names and not signatures.
In AROMIRE vs. AJOMAGBERIN (supra), the process in that case was issued in the name of Kayode Sofola, SAN. Somebody signed on behalf of Kayode Sofola, SAN. The person who signed did not indicate his name and designation and this Court held that the Court process which was signed by an unknown person for Kayode Sofola, SAN was incompetent. Equally, in PEAK MERCHANT BANK LTD vs. NDIC (supra), the Court process in that case was issued in the names of Babajide Koku, Esq. and L.O. Iluyomade, Esq. The person who signed the process was not indicated and this Court held that the process was incompetent. The cases of AROMIRE and PEAK MERCHANT BANK LTD seem to be on all fours with the facts of the instant matter. The question remains, who is the signatory? Is the signatory a legal practitioner? There is no way it can be ascertained if the signature belongs to a legal practitioner as the signature is not legible. By Sections 2 (1) and 24 of the Legal Practitioners Act, only a legal practitioner can sign Court processes. The importance attached to the signing of a Court process is such that where it cannot be said who signed a Court process; the Court process is incurably bad. A signature without the name of the counsel appending the signature is incurably bad – per Rhodes-Vivour, JSC in SLB CONSORTIUM vs. NNPC (supra).
As laid down in MADUKOLU vs. NKEMDILIM (1962) 2 NSCC 374 at 379 380, a Court is competent, inter alia, when the case comes before the Court initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. The substantive provisions of Sections 2 and 24 of the Legal Practitioners Act are such that in order for a case to be initiated by due process of law, the Court process must have been issued and signed by a legal practitioner. Since the person who signed the process in this matter is unknown, the process is incurably bad. The law is ensconced like the Rock of Gibraltar on the effect of a Court process that is not signed in accordance with the provisions of Sections 2 and 24 of the Legal Practitioners Act. See OKAFOR vs. NWEKE (supra), SLB CONSORTIUM LTD vs. NNPC (supra), FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR (9713) SC OGUNDELE vs. AGIRI (2009) 18 NWLR (PT. 1173) 219 at 246-247 and OKETADE vs. ADEWUNMI (supra) at 73-75. Such a process is incompetent.
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT. 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT. 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction. Therefore since the originating summons in this matter is defective and incompetent, the lower Court did not have the jurisdiction to entertain the action since it was not initiated by due process of law, and the incompetent process was a feature that prevented the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).
The issue of jurisdiction is very fundamental and goes to the competence of the Court. Where a Court is not competent, it is a waste of time to embark on a hearing and determination as whatever decision reached, no matter how brilliant, is a nullity since the defect is extrinsic to the adjudication. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT. 84) 508 at 520:
If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.
The defective originating summons went to the root of the action and the conditions precedent to the exercise of the Courts jurisdiction were not met:
KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 and BRAITHWAITE vs. SKYE BANK (2012) LPELR (15532) 1 at 7-8. It was a waste of precious judicial time for the lower Court to have gone the whole hog in hearing the action initiated by the defective and incompetent originating summons. The action is deserving of an order striking it out for being incompetent. In the diacritical circumstances, all the proceedings which rested on the incompetent Originating Summons are deemed not to have taken place in law. The Latin maxim is ex nihilo, nihil fit: out of nothing, nothing comes. See MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. The incompetent originating summons could not spawn a competent trial.
The originating summons and accompanying processes in this case, (contained at pages 8-83 of the Records), having been found to be fundamentally defective, are hereby struck out for being incompetent and incapable of initiating the proceedings, thereby robbing the lower Court of the jurisdiction to hear and determine the action as initiated. See SLB CONSORTIUM vs. NNPC (supra) and ADEWUNMI vs. OKETADE (2010) 3 SCNJ 368. It must however be stated for added emphasis that, as in OKAFOR vs. NWEKE (supra), the effect of this is not to shut out the aggrieved litigants from further ventilating their grievances before the hallowed Courts of justice. It merely presents them with an opportunity to present a proper claim before the Court of trial, if they so wish, and to pursue it to its logical conclusion. Happily, by the provisions of Section 44 of the Nigeria Deposit Insurance Corporation Act, the statute of limitation does not run in an action by the 1st Respondent to recover a debt owed a failed insured financial institution like City Express Bank Limited, the original 1st Plaintiff in the action at the lower Court. The right of action in respect of the cause of action therefore remains extant.
Concomitantly, this issue number one must ineluctably be resolved in favour of the Appellants. In the light of all the above and since this Court does not act in vain, there is no further need to consider the substantive issues raised in the Appeal as they have been rendered hypothetical and/or academic.
See NIGERIAN ARMY vs. SAMUEL (2013) LPELR (20931) (SC). In a summation, the appeal therefore succeeds and the Respondents action which is incompetent is hereby struck out. The parties are to bear their respective costs of this appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA in this appeal.
I agree that the appeal is meritorious having been unable to make out the signature on the originating summons as to whether it is Shakira Odogwu as found by the lower Court or Shakirah Odogun’ as contended by the Respondents.
There is a stark distinction between the name made out by the High Court Judge and on the record; this has been compounded by the Respondent counsel in his brief, leading to a pointer that the signature or name is not identifiable as a legal practitioner and therefore not traceable to the roll of call. It would amount to sheer speculation or conjecture to hold a contrary view.
This issue therefore goes to the competence of the originating summons and also affects the jurisdiction of the Court to exercise its adjudicatory powers.
This Court therefore has no choice than to agree with the lead judgment and to strike out the originating summons and the accompanying documents for being incompetent.
For this and the fuller reasons contained in the lead judgment, the appeal accordingly succeeds. I also abide by all consequential orders in the lead judgment.
TOBI EBIOWEI, J.C.A.: My learned brother, Ugochukwu Anthony Ogakwu, JCA obliged me his lead judgment which I had the privilege of reading in draft. I agree with the reason and conclusions reached therein.
I have nothing to add as my learned brother has sufficiently covered the field on the subject of the incompetence of the originating process in the matter.
I also allow the appeal and struck out the originating process on ground of incompetence. I abide by the order of cost.
Appearances:
Appellants absent and not represented by counsel For Appellant(s)
A. O. Wahab, Esq. with him, Opeyemi Bello, Esq. and Ms. Tobiloba Adebayo For Respondent(s)
