CHIEF JOHNSON EMERE NKPORNWI v. CHIEF HON. J. D. OSARONU
(2019)LCN/13147(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of April, 2019
CA/PH/130/2017
RATIO
ORIGINATING PROCESSES SHOULD BE SIGNED BY AN IDENTIFIED PERSON
The law as it were, is intent on ensuring that originating processes such as writ of summons, meant for the use of the Court, are signed by identifiable or identified persons duly enrolled at the Supreme Court to practice law, as opposed to charlatans or impostors who tend to dent the image of the noble profession.
See also the authorities of SLB Consortium Ltd. vs. NNPC (2011) 9 NWLR PT. 1252, PG. 466; Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, pg. 521; Shell Petroleum Dev. Co. of Nig. Ltd. vs. Prince Ray Elewa (decided in this div. but unreported Appeal No. CA/PH/18/2011); Peak Merchant Bank Ltd. vs. NDIC (2011) 12 NWLR PT. 1261, pg. 253; Sunday Adeneye vs. Alhaji Bukar Yaro (2013) 3 NWLR Pt. 1342, pg. 625; Uwazurike vs. A.G., Federation (2007) 8 NWLR Pt. 1035, pg. 1; Madukolu vs. Nkemdilim (1962) 2 SCNLR. 341 at 348; and Oketade vs. Adewunmi (2010) 8 NWLR Pt. 1195, pg. 63.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JURISDICTION: AN ORDER OF A COURT MADE WITHOUT JURISDICTION CAN BE SET ASIDE EX DEBITO JUSTITIAE
It is settled law that any order or decision of Court made without jurisdiction, can be set aside ex debito justitiae by the Court which made the order/decision or even by a Court of concurrent jurisdiction. See Auto Import Export vs. J. A. A. Adebayo (2002) 18 NWLR Pt. 799, pg. 554, 582-583; Salisu Idris Saliyim vs. Alhaji Mashi (1975) 1 NMLR 55, 58; Offodile vs. Egwuatu (2006) 1 NWLR Pt. 961, pg. 432, paras. G-H; and Igwe vs. Kalu (2002) 14 NWLR Pt. 787, pg. 435.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
COURTS: A COURT HAS THE DUTY OF PRONOUNCING ON ALL ISSUES BROUGHT BEFORE IT
See again Uwazurike vs. A.G., Federation, supra; Chief Bright Onyemeh vs. Lambert Egbuchulam (1996) 5 NWLR Pt. 448, pg. 255 at 268; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 627 at 654-646; A.G., Federation vs. ANPP (2003) 18 NWLR Pt. 851, pg. 182; and Dr. Okey Okechukwu vs. FRN & 2 Ors. (2015) 7 NWLR Pt. 1457, pg. 1 at 22, paras. C, where my noble Lord Nweze, JSC., in the leading judgment held as follows:
As a general rule an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
CHIEF JOHNSON EMERE NKPORNWI Appellant(s)
AND
CHIEF HON. J. D. OSARONU Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Rivers State High Court (hereinafter to be known and referred to as the lower/trial Court), per Hon. Justice S. O. Iragunima, J., in suit No. NHC/12/2003, delivered 30th November, 2016.
BACKGROUND FACTS
The appellant herein, being the claimant at the lower Court by a writ of summons issued 13th February, 2003, had sought the following reliefs against the defendant/respondent:
1) A declaration that, the plaintiff is the duly installed and coronated Paramount Chief of ONNE, which in the ELEME dialect is known as and called ?ONNE-EH-ONNE.?
2) A declaration that, the traditional installation of the plaintiff as the ?ONNE-EH-ONNE? i.e. the Paramount Chief of Onne on 14/10/89, is still valid and subsisting.
3) A declaration that, under the ELEME native law and custom relevant to chieftaincy installation, there cannot be two paramount chiefs of a community at the same time.
4) A declaration that, since his installation as the ONNE-EH-ONNE on 14/10/89, the plaintiff has neither been
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removed, indicted or (sic) deposed as the ?ONNE-EH-ONNE?.
5) A declaration that, the only opposition to plaintiff?s installation as the ?ONNE-EH-ONNE? was by the late Hon. JUSTICE S. A. Wai-Ogosu (rtd) in suit No. BHC/68/89 which was automatically determined on the death of the plaintiff therein and that since then, nobody in ONNE including the defendant, has ever challenged the plaintiff?s installation as the paramount chief of ONNE in any Court of law.
6) An order of injunction restraining the defendant, and through his servants and agents from further arrogating to himself, the claim to the paramount chieftaincy of Onne. (See pages 2 and 187- 190 of the record of appeal).
With the leave of the lower Court obtained 13th June, 2005, the respondent on their part filed an Amended Statement of Claim, copy of which is contained at pages 23 ? 28 and 110 – 115 of the record of appeal.
In the course of trial, the Appellant himself testified as the CW1 with 2 others i.e. CW2 and CW3 respectively. The respondent on his part testified as the DW1 along with 6 six others who testified as DW2, DW3, DW4, DW5,
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DW6 and DW7 respectively. Several exhibits marked A – A4, B, C, D, E, F, G, H, J ? J5 and J6, K, M, N and P were tendered in evidence by both parties. (See pages 319 ? 393 of the record of appeal for the entire proceedings).
The gist of the Appellant?s case is that upon the dethronement of the late Hon. Justice S. A. Wai-Ogosu on 14th October, 1989 as the paramount ruler of Onne community for misconduct, he the claimant/appellant was unanimously installed as the paramount ruler/chief of Onne community. That the defendant/respondent was also removed and or deposed by the Ogoloma community of Onne on same 14th October, 1989. Following the removal of the said late Hon. Justice S. A. Wai-Ogosu and the defendant from their traditional office, they filed suit No. BHC/68/89 at the Bori High Court challenging the removal. The suit was however, struck out following the death of Chief the Hon. Justice S. A. Wai-Ogosu on 24th September, 1998. According to the claimant/Appellant, no sooner than the death of Hon. Justice Wai-Ogosu was announced, the defendant/respondent started parading himself as the traditional ruler of Onne and the chairman of the
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Onne Council of Chiefs. See pages 187 ? 109 of the record of appeal for the Amended Statement of Claim of the claimant/appellant.
The defendant/respondent?s case at the lower Court was that the late Hon. Justice S. A. Wai-Ogosu, his predecessor was never deposed or found guilty of any misconduct on 14th October, 1989. That the claimant was never selected or installed as the paramount ruler/chief of Onne community. That it was at the graveside of late Hon Justice S. A. Wai-Ogosu, on 7th December, 1998 that his staff of office was handed over to him the defendant publicly signifying customary transfer of office to the latter. That he the defendant was on 13th February, 1999 selected as the ?Onne-eh-Onne the VI? by the chiefs and the accredited representatives of Onne and was given oath of office by the four land priest. And that on 25th February, 1999, he was presented to the King of Eleme land according to custom for final installation and was given certificate of recognition. The defendant?s Amended Statement of Defence is copied at pages 23 ? 28 of the record of appeal.
?
Upon conclusion of hearing and the filing of
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their respective final addresses, the learned trial Judge in a considered judgment delivered 30th November, 2016 dismissed the claimant?s claims. See pages 397 ? 411 of the record of appeal.
Aggrieved by the judgment, the claimant as appellant filed a Notice of Appeal on 15th February, 2017 against the said judgment. See pages 412 ? 13 of the record of appeal).
In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. The Appellant?s brief of argument dated 17th November, 2017, filed 20th November, 2017 and deemed properly filed on 18th September, 2018 and the Appellant?s reply brief dated 31st October, 2018 and filed 1st November, 2018 were both settled by D. G. Kio, Esq. The respondent?s brief of argument dated 18th October, 2018 and filed 19th October, 2018 was settled by Chief E. B. Tegbe.
From the 2 (two) grounds of the Notice of Appeal, the Appellant fathomed the following 2 (two) issues for determination in this appeal:
1. Whether the learned trial Judge was right in failing to enter judgment in favour of the appellant in terms of his claims in
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paragraph 14 (a-f) of the Amended Statement of Claim?
2. Whether the learned trial Judge is right in failing to hold that the appellant having first been selected and installed on 14/10/89 as the Onne-eh-Onne is entitled to be declared as the Paramount Chief of Onne in accordance with the Eleme Native Law and Custom relevant to Chieftaincy installation that there cannot be two paramount chiefs at the same time in Onne Community, the Respondent having failed to counter claim that the Appellant?s first installation was improper, illegal and ought to be declared null and void?
?The respondent on his part, though he formulated a lone issue as apt for determination of the appeal, saw the need to raise in his brief a Preliminary Objection to the competence of the appeal. (See pages 4 ? 5 thereof).
The respondent?s sole issue for determination in the appeal perchance his preliminary objection fails, reads:
Whether the learned trial Judge was not right in dismissing the claim of the Claimant/Appellant and upholding the defence of the Defendant/Respondent based on facts established by evidence presented before the lower Court?<br< p=””</br<
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Being that the preliminary objection is a threshold issue, I shall however, attend to it first lest it terminates the appeal in limine, before delving into the merits or demerits of the appeal itself if need be.
Respondent?s ground for the objection is thus:
The appeal is not competent because the originating processes in this appeal was (sic) not signed by a legal practitioner known to law, but by proxy.
In arguing the preliminary objection, the learned objector canvassed for the appeal to be struck out submitting that the originating processes in this appeal which were filed at the lower Court were not signed by a legal practitioner known to law and that this Court, for this reason lacks the jurisdiction to entertain this appeal. The learned objector relied on the authorities of Onward Enterprises Ltd. vs. Olam Inter?l Ltd. (2010) AllFWLR Pt. 531, pg. 1503, 1513, paras. H ? B; and Madukolu vs. Nkemdilim (1962) All NLR, to state the obvious which is that the Court in several decisions have deprecated the impropriety of signing Court processes by proxy. He urged on us to hold that this appeal has failed the due process test
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and must therefore be struck out.
In their response to the preliminary objection, which response is contained in their reply brief, the learned counsel for the Appellant submitted that the preliminary objection raised by the respondent is both strange and entirely an erroneous submission. Appellant canvassed that it is strange because the submission of the respondent demonstrates lack of familiarity with the principles and purport of preliminary objection under Order 10 Rule 2 of the Court of Appeal Rules, 2016. Counsel relied and referred to the cases of Timothy vs. Fabusuyi (2013) 1 NWLR Pt. 1335, pg. 379; Obasanjo-Bello vs. FRN (2011) 10 NWLR Pt. 1256, pg. 605; Onugha vs. Ezeigwe (2011) 13 NWLR Pt. 1263, pg. 184; Okoi vs. Ibiang (2002) 10 NWLR Pt. 776, pg. 455; and the two learned authors on the subject namely: Ugochukwu Mike Mgbeahuru: Sustainable Preliminary Objections published in 2013 and Chief Tom Anyafulude: Manual of Appellate Proceedings and Brief Writing (2017) on pages 336 to 348.
Appellant contended that in the instant appeal, the Notice of Appeal dated 14/2/2017 and filed 15/2/2017 is not defective, contrary to the peculiar
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circumstances in Onward Enterprises Ltd. vs. Olam Inter?l Ltd. supra relied upon by the respondent?s counsel. Referring to page 9, lines 30 to 34 of the record of appeal, the learned counsel for the appellant canvassed that the Originating Writ of Summons by which the instant suit was commenced at the lower Court was properly issued and signed by a legal practitioner as prescribed by law, namely by F. A. OSO, Esq., legal practitioner of Fatai Aremu Oso & Co., of No. 2 Rail Crescent (Abobiri Street) Port Harcourt, Rivers State, legal practitioner for the said plaintiff. Appellant opines that the respondent by his argument, was pursuing the path of technicality and for which the Courts are not well fitted. See Eze vs. FRN (2017) 15 NWLR Pt. 1589, pg. 433 at 466, paras F-H. He urged that we be guided by the more liberal and less technical approach to justice as shown by this Court and the Supreme Court in the following cases: Augustine Chime vs. Moses Chime (2001) 3 NWLR Pt. 701, pg. 527; Consortium MC. vs. NEPA (1992) 6 NWLR Pt. 246, pg. 132 and Bello vs. Att-Gen., Oyo State (1986) 6 NWLR Pt. 45, pg. 828. Respondent finally urged that there being
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no anchor to sustain the respondent?s preliminary objection, it should be dismissed with substantial costs.
RESOLUTION OF THE PRELIMINARY OBJECTION
Contrary to the submission of the learned counsel for the Appellant wherein he dwelt majorly on the Notice of Appeal, the grouse of the learned objector in his preliminary objection is targeted at the originating process and other processes upon which suit No. NHC/12/2003 was initiated at the lower Court. As enjoined by the Supreme Court in Okwuosa vs. Gomwalk (2017) 9 NWLR Pt. 1570, pg. 259 particularly at 286 ? 287, paras. H-A,
A notice of appeal is the spinal cord of an appeal. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective, no appeal can stand. [Aderibigbe vs. Abidoye (2009) 10 NWLR Pt. 1150, pg. 592; In Re: Otuedon (1995) 4 NWLR Pt. 392, pg. 655; Ebokam vs. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR Pt. 622, pg. 242 referred to.]
?The writ of summons in like vein, is the spinal cord of an action such as suit No. NHC/12/2003. It is the originating process
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which sets the ball rolling for the proper, valid and lawful commencement of an action, hence where the writ of summons is found to be defective, it follows that the action is unsustainable.
By the provisions of Order 6 Rules 1 and 2(3) of the High Court of Rivers State (Civil Procedure) Rules, 2010:
1. Originating process shall be prepared by Claimant or his Legal Practitioner, and shall be clearly printed on good quality white opaque paper.
2. (3) Each copy shall be signed and stamped by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the registrar as being a true copy of the original process filed.
Under Order 15 Rule 2(3) of same High Court of Rivers State (Civil Procedure) Rules, 2010:
Pleadings shall be signed by a Legal Practitioner or by the party if he sues or defends in person.
From the foregoing provisions, two and only two persons stand out as statutorily empowered or enabled to sign a writ of summons and or pleadings as the case may be and those persons are either the claimant himself/herself if he/she sues in person, or his/her Legal Practitioner. The word
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shall as used in the provisions, connote command or imperativeness, leaving no room for choice or discretion.
Now a look at the writ of summons herein, copy of which is contained at pages 2 and 9 respectively of the record of appeal, shows without doubt that the writ was issued by F. A. OSO ESQ., Legal Practitioner of Fatai Aremu Oso & Co. Be that as it may, the said writ of summons was signed by someone else other than the ?F. A. OSO, ESQ.? whose name appears on the process as the counsel for the claimant (appellant), hence the letter ?f? in front of the name. The prefix of the letter f before the name F. A. OSO, ESQ is indicative of the fact that the writ of summons was signed for and on behalf of the said F. A. OSO, ESQ., the legal practitioner representing the claimant. The owner of that signature or contraption is however not disclosed, thus implying that the writ of summons was signed by an unknown proxy, a position that is totally against the contemplation of the provisions of Order 6 Rules 1 and 2, and Order 15 Rule 2(3) supra as well as Sections 2(1) and 24 of the Legal Practitioners Act, Cap L11, Laws of the federation of Nigeria, 2004 ?
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which provides as follows:
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.
Section 24 supra went on to define a Legal Practitioner as:
24. A person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office or proceeding.
The law as it were, is intent on ensuring that originating processes such as writ of summons, meant for the use of the Court, are signed by identifiable or identified persons duly enrolled at the Supreme Court to practice law, as opposed to charlatans or impostors who tend to dent the image of the noble profession.
See also the authorities of SLB Consortium Ltd. vs. NNPC (2011) 9 NWLR PT. 1252, PG. 466; Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, pg. 521; Shell Petroleum Dev. Co. of Nig. Ltd. vs. Prince Ray Elewa (decided in this div. but unreported Appeal No. CA/PH/18/2011); Peak Merchant Bank Ltd. vs. NDIC (2011) 12 NWLR PT. 1261,
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pg. 253; Sunday Adeneye vs. Alhaji Bukar Yaro (2013) 3 NWLR Pt. 1342, pg. 625; Uwazurike vs. A.G., Federation (2007) 8 NWLR Pt. 1035, pg. 1; Madukolu vs. Nkemdilim (1962) 2 SCNLR. 341 at 348; and Oketade vs. Adewunmi (2010) 8 NWLR Pt. 1195, pg. 63.
There is nothing on record in the instant appeal disclosing the signatory or owner of that signature to be a legal practitioner. The signatory for all we care, could be a clerk or even a cleaner in the chambers of Fatai Aremu Oso & Co. Such an unidentified signatory or proxy cannot be seen or heard to sign a fundamental legal process as the writ of summons. This is because there is no provision in the rules of the Court permitting that it be signed by any person other than the claimant himself or the legal practitioner, where he is so represented.
The writ of summons on record bears neither the signature of the claimant nor of his counsel. Contrary to the contention of the learned counsel for the appellant, there is no question of technicality in the circumstances, more so as the compliance demand is statutorily provided for. Laws and rules of Court are there to be obeyed. Being the foundation of suit
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No. NHC/12/2003, any defect in the writ of summons such as non-signing by the proper person or signing by an un-named or unknown proxy, as has happened in the instant scenario, renders the entire suit and every action taken thereon incompetent and of no effect or value. Though the notice of appeal upon which this appeal No CA/PH/130/2017 leans is untainted, the fact remains that there was no valid judgment in the first instance to appeal against. Suit No. NHC/12/2003 is indubitably not initiated by due process of law and upon fulfillment of the condition precedent, which condition is that the said writ of summons shall be signed by the claimant if suing in person or by a legal practitioner. See further the authority of CBN vs. S.A.P. Nig. Ltd. (2005) 3 NWLR Pt. 911, pg. 52. All what the learned trial Judge did at the trial Court with all due respect, amounted to a nullity given that it was done without the requisite jurisdiction.
A faulty and or incompetent writ of summons cannot sustain any action since one cannot put something on nothing and expect it to stand. The lower Court was on that premise robbed of the jurisdiction to entertain the suit ab initio
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It is settled law that any order or decision of Court made without jurisdiction, can be set aside ex debito justitiae by the Court which made the order/decision or even by a Court of concurrent jurisdiction. See Auto Import Export vs. J. A. A. Adebayo (2002) 18 NWLR Pt. 799, pg. 554, 582-583; Salisu Idris Saliyim vs. Alhaji Mashi (1975) 1 NMLR 55, 58; Offodile vs. Egwuatu (2006) 1 NWLR Pt. 961, pg. 432, paras. G-H; and Igwe vs. Kalu (2002) 14 NWLR Pt. 787, pg. 435. It is against this backdrop that I find and hold that the learned trial Judge rather than entertain and determine suit No. NHC/12/2003 ought to have had it struck out, given that the originating process upon which it was initiated was not signed by a legal practitioner known to law, but by proxy. The learned trial Judge has thus labored in vain.
The preliminary objection as raised by the respondent is imbued with merit and so is upheld. This is to say that the preliminary objection is resolved in favour of the respondent and against the appellant.
Having found that there was nothing to appeal against, I find it pertinent to add that I lack the jurisdiction to proceed to determine
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the issues raised in the appeal proper. They are now overtaken by event. See again Uwazurike vs. A.G., Federation, supra; Chief Bright Onyemeh vs. Lambert Egbuchulam (1996) 5 NWLR Pt. 448, pg. 255 at 268; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 627 at 654-646; A.G., Federation vs. ANPP (2003) 18 NWLR Pt. 851, pg. 182; and Dr. Okey Okechukwu vs. FRN & 2 Ors. (2015) 7 NWLR Pt. 1457, pg. 1 at 22, paras. C, where my noble Lord Nweze, JSC., in the leading judgment held as follows:
As a general rule an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case the Court of Appeal upheld the 1st Respondent?s Preliminary Objection to the competence of the Appellant?s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal?.
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The inevitable conclusion herein is that the whole proceedings at the lower Court, including the resultant judgment of 30th November, 2016, were anchored on a faulty foundation. The judgment which is a nullity obviously yielded nothing to appeal against to this Court. In the event, the judgment of the High Court of Rivers State in suit No. NHC/12/2003, per Hon. Justice S. O. Iragunima, J., delivered 30th November, 2016, is struck out, given that same was reached ultra vires and without the requisite jurisdiction of the lower Court.
Costs assessed and fixed at N60,000.00 is awarded in favour of the respondent and against the appellant.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother CORDELIA IFEOMA JOMBO OFO, JCA. I too agree that the Judgment of the trial Court was delivered without jurisdiction and same ought to be and is hereby struck out by me also. I abide by all other consequential orders in the lead Judgment including order as to costs.
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Appearances:
D.G. Kio, Esq.For Appellant(s)
Chief E.B. Tegbe with him, E.O. Oguji, Esq.For Respondent(s)
Appearances
D.G. Kio, Esq.For Appellant
AND
Chief E.B. Tegbe with him, E.O. Oguji, Esq.For Respondent
