CHIEF DONALD JAMESON UDO v. CHIEF RAYMOND UDIA UMANA ADUA & ORS
(2019)LCN/12829(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/62/2016
RATIO
COURT AND PROCEDURE: INITIATING PROCESS FOR AN APPEAL
“The law is trite and settled that initiating process must be signed either by the party or counsel acting on behalf of the party. A competent and valid initiating process is a very important process 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 pre-requisite 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 argument of the Respondent is that a condition precedent to a valid writ is lacking on the original writ of summons and therefore, the Court below lacked jurisdiction to determine the suit.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
COURT AND PROCEDURE: THE EFFECT OF UNSIGNED COURT PROCESS
“The effect of an unsigned Court process has received judicial attention and also how such processes are to be signed. In the case of WILLIAMS & ANOR. VS. ADOLD STAMM INT?L. (NIG.) LTD. & ANOR. (2017) LPELR-41559 (SC), the apex Court held thus: “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. In 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.” Per Kekere-Ekun, JSC.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
CHIEF DONALD JAMESON UDO
(For and on behalf of and represented Nung Akpan Ekong
Family of Ikot Ekong Village) – Appellant(s)
AND
1. CHIEF RAYMOND UDIA UMANA ADUA
2. NSOBOM PIUS N. UDO
3. THE PARAMOUNT RULER OF MKPAT ENIN – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Akwa Ibom High Court delivered on the 29th day of October, 2015 by Hon. Justice Edem Akpan wherein the claim of the Appellant was dismissed. Dissatisfied with the said decision, the Appellant filed his Notice of Appeal on the 11th November, 2015 setting out four (4) grounds of appeal.
Facts leading to this Appeal are straight forward. The Appellant sued the Respondents seeking the following reliefs:
i. A Declaration that the 1st defendant is not the village head of Ikot Ekong in Mkpat Enin Local Government Area of Akwa Ibom State.
ii. A declaration that by the adoption of the rotatory village headship on the 1st November, 2001 it was the turn of Nung Akpan Ekong family to produce the village head of Ikot Ekong family in Mkpat Enin Local Government Area.
iii. An Order of Court nullifying the certificate of Recognition issued to the 1st defendant on the 2/12/2009.
iv. An Order of Court restraining the 1st defendant from parading himself as the Village head of Ikot Ekong Village.
The Appellant took out a writ against the Respondents and others who were later struck out of the suit; he sought the nullification and withdrawal of the certificate of recognition given to the 1st Respondent. The original Claimant died and was substituted with the present Appellant. Issues were duly joined in the pleadings and the matter proceeded to trial culminating in the judgment dismissing the claim of the Appellant on the ground that the Appellant failed to justify locus standi to prosecute the claim, and dissatisfied with the judgment, the Appellant filed his notice of appeal.
The Appellant’s Brief of Arguments settled by UBONG GIDEON PERTERS, ESQ., was filed on the 18th day of April, 2016 and deemed on the 21st day of February, 2018. It formulated three (3) issues for determination as follows:
i. Whether the learned trial Judge was right to consider the issue of locus standi in his judgment after he had given a ruling on the same issue during the trial.
ii. Whether the learned trial judge was not obligated to nullify the certificate of Recognition of the 1st Respondent when there was clear evidence that it was obtained by fraud.
iii. Whether upon due consideration of the facts of this case the Rule of exhaustion of domestic remedies was applicable.
The Respondents Brief of arguments settled by CHIEF P. ANSELEM EYO ESQ., is dated 6th day of April, 2018 and deemed on 14th day of January, 2019 wherein it set out 2 issues namely:
a. Whether the judgment of the trial Court was against the weight of evidence.
b. Whether the Appellant was able to prove his claims against the Respondents as would have entitled him to the relief that he sought.
The Respondents also incorporated a preliminary objection in their Respondents’ Brief and gave Notice of preliminary Objection filed on the 9th day of April, 2018 and which states thus:
TAKE NOTICE that the Respondent shall at the hearing of the appeal raise a preliminary objection to the Appellant’s appeal and shall seek the dismissal of the said appeal upon the following jurisdictional grounds:
i. The combined effect of Order 3 Rule 8(1) and Order 6 Rule 2(3) of the Akwa Ibom State High Court (Civil Procedure) Rules provide that the writ of summons should be signed by the Plaintiff or his counsel.
ii. The writ of summons in the Appellant?s case which forms pages 2-3 of the Record before this Honourable Court is res ipsa loquitor not signed by the Plaintiff/Appellant or his counsel and is to this extent therefore incompetent to have sustained the action which is now subject matter of this appeal.
iii. Based on the above stated situation the trial Court lacked the jurisdiction both to have entertained the action and or give the judgment it did and the incompetence of some of the grounds of appeal.
iv. The grounds of Appeal are incompetent upon the circumstances that they are raised from the obiter dicta but not from the ratio decidendi of the judgment.
The preliminary objection incorporated in the Respondents’ Brief state thus:
In this Brief, the Respondents shall by leave of this Honourable Court and as a threshold issue, seek the termination of this appeal by dismissing it on the grounds that the action that was commenced by the writ(s) of summons which was/were not signed either by the Appellant or by his counsel was incompetent and could therefore not sustain the judgment; or in the alternative also seek:
Either:
(i) For the striking out of all the grounds of appeal upon the grounds of incompetence of those grounds and for the dismissal of the appeal;
(ii) Dismissal of the appeal and upholding the judgment of the trial Court upon circumstances that the Appellant failed to prove his claims before the Court.
Arguments in support of the Preliminary objection are contained in the Respondents? Brief at pages 3-10. A summary of the arguments is provided here under.
The Respondents contended that the Court lack jurisdiction because the prerequisite for exercising jurisdiction are absent, referred to MADUKOLU VS. NKEMDILIM (1962) (PT. 2) NLR 581 and listed the features required for the activation of jurisdiction. They submitted that in this appeal, the originating process shown at pages 2-3 and 137-138 of the record of Appeal is incompetent, lacking the required signature as stipulated by the rules of trial Court and citing OKARIKA VS. SAMUEL (2013) ALL FWLR (PT. 706) 484; KIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) 402; SLB CONSORTIUM LTD. VS. NNPC (2011) ALL FWLR (PT. 583) 1902; ADENIRAN VS. MBA (1994) 4 NWLR (PT. 336) 75; NWANCHO VS. ELEM (2004) ALL FWLR (PT. 225) 93 on the necessity of having a competent initiating process. They submitted that the apex Court set out how processes filed in Court should be signed, citing MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE & 4 ORS. VS. ALHAJI ISIYAKU YAKUBU & ANOR. (2013) ALL FWLR (PT. 694) 23; FIRST BANK NIG. LTD. VS. MAIWADA (2012) 213 LRCN 121.
On the effect of failure to sign a writ properly, he submitted that the Courts have held that it affects the competence and validity of the writ; consequently, it cannot vest jurisdiction on the Court, relying on STANDARD PRINTING & PUBLISHING CO. LTD. VS. NIGERIA-ARAB BANK LTD. (2003) FWLR (PT. 137) 1097; OKAFOR VS. UCHEBOR (2003) FWLR (PT. 136) 876 and KEYSTONE BANK LTD. VS. J.O.A. & S. (NIG.) LTD. (2015) 1 NWLR (PT. 1439) 98 and on the basis of SPDC VS. ROYAL NIG. LTD. (2016) 65 NSCQR 1776 and OKAFOR VS. NWEKE (2007) ALL FWLR (PT. 368) 1016 they urged the Court to strike out the suit for want of jurisdiction.
The Respondents in further arguments submitted that the judgment was predicated on 2 versions of the writ of summons as was the case in SPDC VS. ROYAL NIG. LTD. (supra) and as seen at pages 1-2 and 137-138 of the record of appeal we urged that they cannot stand, consequently, they should be struck out.
On the second leg of the objection, the alleged incompetent grounds of appeal, the Respondents contended that all the grounds do not arise from the ratio of the judgment but from obiter, referred to page 592-596 of the record of appeal. They submitted that ground 2 is on procedure adopted in resolving the issue of locus standi. They relied on MFA & ANOR. VS. INONGHA (2014) 1 SCM 100 where the apex Court held that an attack on the procedure leading to judgment alone presupposes that the judgment is admitted as correct and advised parties to always attack the merit of the judgment in case the attack on procedure fail. They submitted that the difference between an obiter and a ratio was stated in the case ofOLEKSANDR VS. LONESTATR DRILLING CO. LTD. (2015) EJSC (VOL. 17) 1 and said an obiter cannot sustain a ground of appeal as ground of appeal must complain or challenge the decision or relate to the decision, citing LASISI OGBE VS. SULE ASADE (2010) 4 NSCR; ABE VS. UNIVERSITY OF ILORIN & ANOR. (2013) 12 SCM 27 and ODOM VS. PDP (2015) EJSC (VOL. 12) 55.
Continuing their submissions, the Respondents argued that a ground of appeal must challenge the ratio and a ground cannot be founded on what the Court has not decided and in following GARUBA VS. OMOKHODION (2011) 200 LRCN 100 and NBC VS. DADA (2003) 4 FR 70 urged the Court to strike out the grounds.
The Appellant in response to the Preliminary Objection filed a Reply Brief dated 2nd day of May, 2018 on the 4th day of May, 2018 and was deemed on the 14th day of January, 2019. In it he responded to the preliminary objection and the Respondents’ Brief.
On the writ, learned counsel submitted that the original writ of summons was filed by Chief Obo Ibanga Udo, who later died and was substituted, and the writ was amended on the 24th day of April, 2018. He contended that it was upon the amended writ that the judgment was predicated. He submitted that the amended writ was signed by counsel and the Registrar as seen at pages 192-216 of the Record and therefore the Respondents are trying to pull the wool over the eyes of the Court. He insisted that the writ was signed by both learned Counsel, Nsemeke Daniel, Esq., and the Registrar. Arguing further, the Appellant contended that assuming the writ was not signed as contended, it will not divest the Court of jurisdiction relying on Order 6 Rule 2(1) of the Akwa Ibom State (Civil Procedure) Rules 2009 to draw support and said the use of the word ‘shall’ can save the writ, citing BUHARI VS. INEC (2009) 4 EPR VOL. 4 638. Appellant submitted that the Registrar was vested with the power to issue a writ of summons therefore whether the writ filed by the original Plaintiff and the Amended writ was signed or unsigned, such error should not be visited on the Appellant, citing C.I.T.E.C INT.L ESTATES LTD. VS. YUSUF & ANOR. (2016) LPELR-40207 (CA); SHUAIBU VS. MUAZU (2007) 7 NWLR (PT. 1033) 271; IN S.I.V. LTD. VS. AFRO SHELTAERS LTD. (2010) 1 NWLR (PT. 1175) 209; UTC NIG. LTD. VS. PAMOTEI (1989) 2 NWLR (PT. 84) 508; SHELL PETROLEUM DEVELPOMENT VS. AGBARA & ORS. and ONWUCHEKWA VS. NDIC (2002) 5 NWLR (PT. 760) 371 @ 393.
The Appellant challenged the Respondents in taking the objection late in the day and argued that it was not raised before the trial Court and therefore it cannot be raised here. He relied on MOGAJI VS. CADBURY NIGERIA LTD. (1985) 7 SC 59 to submit that issues cannot be raised for the first time in the Court, therefore, the Respondents are estopped from relying on and benefitting from the objection.
On the alleged incompetent grounds of appeal, the Appellant submitted that the grounds are competent. He reproduced the definition of obiter and ratio from Black’s Law Dictionary. On what a ground of appeal means, he referred to ALBERT AKPAN VS. SENATOR EFFIONG BOB & ORS. (2010) 43 NSCQR 409. He agreed that a ground of appeal must stem from the judgment but does not expect the appellant to copy the same words used in the judgment, and that a ground can arise from the procedure adopted in arriving at judgment as decided in the case of AKPAN VS. BOB (supra). On the basis of above authority, appellant submitted that the 4 grounds of appeal are competent and therefore, the objection should be discountenanced.
RESOLUTION OF THE PRELIMINARY OBJECTION
The objection is double barreled; one angle is challenging the writ of summons for lacking the required signature of the Appellant or his counsel, while the second leg is contending that the grounds of appeal are incompetent. The first leg is a jurisdictional issue that must be resolved first before any step can be taken in the appeal and only if found to be frivolous. The original writ of summons in this case was filed on the 24th day of May, 2012 (see page 1-2 of the record of appeal) by Chief Obo Ibanga Udo and when the original Plaintiff died, there was need to substitute him and the writ was amended by leave of Court and filed on the 5th day of February, 2013 (see page 137-138 of the record of appeal).
The law is trite and settled that initiating process must be signed either by the party or counsel acting on behalf of the party. A competent and valid initiating process is a very important process 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 pre-requisite 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 argument of the Respondent is that a condition precedent to a valid writ is lacking on the original writ of summons and therefore, the Court below lacked jurisdiction to determine the suit.
I have viewed the writ of summons filed on the 24th day of May, 2012 which is the initiating process in the suit and it is obvious on the face of the original copy that it was not signed by counsel or the party himself. It is a requirement of law and rules of Court for such a process to be franked by either the party or the legal practitioner filing the process. However, the amended writ was signed and stamped by the learned counsel for the Appellant. The effect of an unsigned Court process has received judicial attention and also how such processes are to be signed. In the case of WILLIAMS & ANOR. VS. ADOLD STAMM INT?L. (NIG.) LTD. & ANOR. (2017) LPELR-41559 (SC), the apex Court held thus:
“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. In 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.” Per Kekere-Ekun, JSC.
To further emphasis the notorious 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 divest the Court of jurisdiction, this Court in the case of JULIUS BERGER (NIG.) LTD. VS. UDOFIA (2017) LPELR-42638 (CA), a judgment delivered by my learned brother, Iheme-Nwosu, JCA succinctly restated the principle and held thus:
“To determine whether the originating process in this suit was initiated by due process of law to cloth the lower Court of jurisdiction, reference must be made to Order 6 Rules 1 and 2(3) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009. It provides as follows: “Originating process shall be prepared by a Claimant or his legal practitioner… Each copy shall be signed and stamped by the Legal practitioner or by a Claimant where he sues in person…” It is clear from the above provisions 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 thus: “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, where Rhodes-Vivour, JSC; held thus: “What then is so important about the way counsel chooses to sign processes. Once it cannot be said who signed the process, it is incurably bad and Rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). 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 requirement that originating process shall be prepared by a Claimant or his legal practitioner and each copy signed and stamped as provided in Order 6 Rules 1 & 2 of the Akwa Ibom State High Court (Civil Procedure) aforementioned, is not a mere irregularity in procedure, but of substantive law. It touches on the jurisdiction of the Court to hear and determine the suit. The failure of the claimant or his Legal practitioner on his behalf to sign the writ of summons has resulted in very unpleasant consequences. It robbed the lower Court the jurisdiction to hear and determine the suit. No matter how well researched the Ruling of the trial Court as in the instant case, it is a nullity as you cannot put something on nothing.”
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, which in Section 2 (1) thereof provides that “a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll”, also, 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 or imperative provisions of the Constitution and statutes is that the act, proceedings or decisions done in such violation are illegal, null and void. The apex Court in the case of IFEZUE VS. MADUGHA & ANOR. (1984) 5 SC. (1984) ALL NLR 256 stated that a mandatory or imperative enactment must be obeyed or fulfilled exactly. The effect of failure to strictly comply with a statutory mandatory requirement relating to the procedure of commencing a proceeding or trial is that on appeal the trial or proceeding will be declared a nullity. See KAJUBO VS. THE STATE (1988) NWLR (PT. 73) 721. 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. Thus, as it was held in MADAYE DUPIN VS. OLONINORAN (2013) 1 NWLR (PT. 1334) 175, non-compliance with conditions precedent for initiating an action vitiates the action ab initio. See also ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) 350; ATUYEYE VS. ASHAMU (supra); UWAZURUIKE VS. A.G. FEDERATION (Supra); AJUWA VS. S.P.D.C. NIG. LTD. (2008) 10 NWLR (PT. 1094) 64; MADUKOLU VS. NKEMDILIM (supra).
The Appellant in opposing the objection argued that the Amended writ of summons was duly signed upon the amendment and therefore, it is valid as the defect has been cure by the amendment which expectedly takes effect from the date the initial process was filed. The Supreme Court in the case of A.S.W.A. VS. EKWENEM (2009) 13 NWLR (1158) 410 at 435-6 had restated the position of the law in the following terms:
“Although once pleadings are duly amended by an order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issue to be tried before the Court, that however, is as that proposition of the law goes. It does not lay down any principle that an original pleading which has been amended by the order of the Court, automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings.”
Similarly, the apex Court in the case of A-G EDO STATE VS. JESSICA TRADING CO. (1999) 5 NWLR (604) 500 @ 513 had inter alia, held on the effect of amendment of a process that: “However, because a pleading is amended does not mean that it is expunged or struck out and the Court can rightly refer to it though it cannot consider it as the basis of the claim or defence in the action. Thus, pleading amended does not cease to be part of the record.” See also SALAMI VS. OKE (1987) 4 NWLR (63) 11; AGBAISI VS. EBIKOREFE (1997) 4 NWLR (502) 630; BALONWU VS. OBI (2007) 5 NWLR (1028) 488. Another principle of law flowing from the above is that an amendment takes effect from the date of the process amended as established in cases such as MASKA VS. IBRAHIM (1999) 4 NWLR (599) 415 @ 421 where it was held that: – “An amendment dates back to the date the document amended was filed.” See UKPONG VS. ETUK & ORS. (2011) LPELR-14270 (CA), Per GARBA, J.C.A.
The question is whether an amendment of a writ can cure an incompetent writ or process, which was also settled in a number of decisions of the apex Court and this Court. It may be argued that those processes were subsequently amended and properly signed by named Legal Practitioners as indicated in those amended processes. It is the long established law that once a process is invalid, no amount of dexterity, sophistry or ingenuity by way of amendment can be employed to save it. This is because, what is void is void and one cannot put something on nothing and expect it to stand, it is bound to collapse. It therefore means that despite the amendments of those originating processes, they remain invalid. The defect being fundamental and which touch on the root of those processes; it therefore remains void as settled by law. SeeASHCO NIG. LTD. & ANOR. VS. WARD AND GREEN & ANOR. (2009) LPELR-8725 (CA); N.I.W.A. VS. S.P.D.C. (NIG.) LTD. (2007) ALL FWLR (PT. 361) P. 1727 @ 1747; and EKWULUGO VS. A.C.B. (2006) 6 NWLR (PT. 975) P. 30 @ P. 40. See also S.C.C. NIG. LTD. & ANOR. VS. MR. LEVI EKENMA (2008) LPELR-8326 (CA).
Furthermore, the other line of argument is that though the amendment went to the roots, the Respondent should be estopped by conduct, having waived his objection, or consented to the amendment from complaining that the process, in this case the writ of summons was incompetent. The position of the law against such argument is supported by a number of dicta of the apex Court in several authorities including AWHINAWHI VS. OTERI (1984) 5 SC. 38; ATUYEYE VS. ASHAMU (1987) 1 SC 333 @ 358; NWAIGWE VS. OKERE (2008) 5 SCNJ 2556 at 274, it is that, the defect is fundamental and a defective writ of summons cannot be cured by an amendment of same and that only a valid originating process can be amended subsequently.
And as Lord Denning stated in U.A.C. LTD VS. MACFOY (1961) 3 ALL E.R. 1160, you cannot place something upon nothing and expect it to stand. A fundamentally defective writ of summons is incurably bad and is one that was dead on arrival.
The law is now settled, as can be seen from the decision of the Supreme Court in MILITARY ADMINISTRATOR, BENUE STATE VS. ULEGEDE (2001) 17 NWLR (PT. 741) 194; (2001) 9-10 SC. 180, that where an act is void ab initio it cannot be validated by subsequent acts, which are even valid. In this case it was held that since the purported retirement of the Respondent was void ab initio, the subsequent acceptance of the payment of three months? salary in lieu of notice would not operate either on principles of waiver or estoppel by conduct to validate the act that was void ab initio. This authority of the MILITARY ADMINISTRATOR, BENUE STATE VS. ULEGEDE (supra) has settled the point that a party is estopped from complaining that the original process was incurably defective and a nullity when he did not oppose the application for amendment of the process.
Flowing from above, because the Original writ of summons was not signed by counsel, it is fundamentally defective and divest the Court of jurisdiction, consequently, the preliminary objection on the first leg succeeds; and being an issue of jurisdiction, the second leg cannot be considered as the claim before the trial Court must be struck out for lack of jurisdiction.
Accordingly, Suit NO. HME/9/2012 is hereby struck out.
I make no order as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree with my learned brother that there was a fundamental defect in the original writ of summons in this suit which deprived the trial Court of the vires-jurisdiction to embark on trying the suit. I also uphold the first leg of the preliminary objection in this appeal and I join my learned brother in striking out Suit No. HME/9/2012.
I abide by the order as to cost.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I am in full agreement with the reasoning and conclusion of the well-articulated judgment. I too, uphold the respondents’ preliminary objection.
I abide by the consequential orders decreed in the leading judgment.
Appearances:
Samuel Udo, Esq. with him, Emmanuel Egbo-Egbo, Esq. holding brief of Ubong Peters, Esq.For Appellant(s)
Chief P. Anselem Eyo, Esq. with him, Zach Okoro Nkwo, Esq., Idonesiet Adams, Esq. and Rebecca Nkuta, Esq.For Respondent(s)
