CHIEF OSMOND UGBOR V. MR. STEPHEN C. MADOR & ANOR
(2018)LCN/11969(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2018
CA/J/166/2017
RATIO
COURT AND PROCEDURE: WHO CAN SIGN A COURT PROCESS?
“Thus, the law is that all Court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria, Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
CHIEF OSMOND UGBOR – Appellant(s)
AND
1. MR. STEPHEN C. MADOR
2. MRS. VICTORIA C. MADOR – Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Plateau State delivered in Suit No PLD/ J477/2009 on the 15th of December, 2016 by Honorable Justice D. G. Mann.
The Appellant commenced the action before the lower Court and his claim against the Respondents was for declaration of ownership of a parcel of land lying and situated at Nyango Gyel Village, Bukuru Low Cost Jos South Local Government Area and covered by a Right of Occupancy No PL30148, damages for trespass and injunction restraining further trespass. The Appellant filed his writ of summons and all other necessary originating processes in support thereof. The Respondents were duly served with the processes and they responded by filing a statement of defence and counterclaim and this was accompanied by all necessary processes.
The party concluded the exchange of pleadings and whereupon the matter proceeded to trial. The Appellant called two witnesses in proof of his case and he tendered several exhibits and the Respondents called five witnesses in proof of their case and they also tendered exhibits. The Court also visited the locus in quo in the company of the parties and their Counsel. At the conclusion of trial, the parties filed their respective written addresses and their respective Counsel relied on and adopted the written addresses before the lower Court and the matter was set down for judgment. Rather than deliver judgment on the case canvassed by the parties before it, however, the lower Court, on the date fixed for judgment, raised an issue suo motu and requested the parties to address it on the same. The issue raised by the lower Court was:
Having regard to the requirement of Order 5 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987, read together with Sections 2(1) and 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990, whether or not the writ of summons issued on the 4th of November, 2009 in the suit by the plaintiff in commencing the suit is a competent process and, if so, what is the legal consequence.
The parties filed and exchanged written addresses on the issue so formulated by the lower Court and their Counsel adopted the respective addresses before the lower Court. The lower Court thereafter delivered judgment on the basis of the issue it raised suo motu and it found that the writ of summons was incompetent and it struck out the case of the Appellant and it made no findings and pronouncement on the merits of the case in respect of which trial was concluded and address taken. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 7th of February, 2017 and containing five grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 9th of June, 2017 on the same date while Counsel to the Respondents filed a brief of arguments dated the 6th of July, 2017 on the 10th of July, 2017 and the brief of arguments was deemed properly filed by this Court on the 27th of September, 2017. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.
Now, the writ of summons in question is part of the records of appeal and the problem of the lower Court with the writ of summons was with the signing and issuance of the same. The writ of summons carried on its face, in the signature column, the following endorsements:
Signature
G. Ofodile Okafor Esq. OON (SAN) MCIArb (UK)
This Writ was issued by G. Ofodile Okafor & Company whose address for service is No. 42, Tudun Wada Ring Road, Jos, Legal Practitioner for the Plaintiff who resides in Jos.
The lower Court stated in the judgment thus:
The writ of summons in contention is before the Court, of which I take judicial notice pursuant to Section 122(2)(m) of the Evidence Act 2011. Below the claim endorsed on the writ is a signature, followed by the name ‘G. Ofodile Okafor, Esq. OON (SAN) MCIarb (UK)’. Below the name quoted above is the following statement: ‘This writ was issued by G. Ofodile Okafor & Company whose address for service is No. 42, Tudun Wada Ring Road, Jos, Legal Practitioner for the Plaintiff who resides in Jos’
It cannot be gainsaid that the writ itself says that it was issued by ‘G. Ofodile Okafor & Company’.
Considering the authorities cited to me by counsel as well as several others, it is now trite law that a firm of legal practitioners is not qualified to practice as a barrister or solicitor in Nigeria and to sign Court processes as such. I therefore hold that the law firm of G. Ofodile Okafor & Company is not qualified to practice law as a barrister and or solicitor and to sign and issue court processes, not being a living human being and on the roll of legal practitioners at the Supreme Court of Nigeria.
It has been argued with considerable force by learned Silk that G. Ofodile Okafor, Esq. SAN rather than G. Ofodile Okafor & Company signed the writ of summons. Being an originating process, it must be considered on its own merit without having to interpret it with the aid of evidence extraneous to it.
Nor is the submission that G. Ofodile Okafor, OON SAN MCIarb (UK) is a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court of any help in this situation, for that is not what the writ of summons in this case says. Even if it is taken for granted that G. Ofodile Okafor, SAN is a legal practitioner who is qualified to sign and did sign the process as such, the writ itself does not describe him as such. The submission is tantamount to oral evidence, which cannot be allowed to modify a clearly written document.
As it is, it cannot be said that a solicitor named G. Ofodile Okafor, Esq. OON (SAN) MCIarb (UK) in this case applied for the issuance of the writ of summons as required by the community reading of Sections 2(1) and 24 of the Legal Practitioners Act, For the avoidance of doubt, the writ of summons in this case says that the legal practitioner who signed and issued the said writ is G. Ofodile Okafor & Company whose address for service is No. 42, Tudun Wada Ring Road, Jos, Legal Practitioner for the Plaintiff who resides in Jos. I am of the humble view that the writ is incompetent and I agree with the submission that it is incurably bad.
The lower Court proceeded there from to strike out the suit of the Appellant. It did not give any look into the merits of the case canvassed before it by the parties.
Counsel to the Appellant formulated three issues for determination in the appeal and these were:
i. Whether the writ of summons issued by the trial Judge on 4th of November, 2009 was properly endorsed by G. Ofodile Okafor SAN, OON, MCIarb (UK).
ii. Whether the trial Court was right to have raised the issue of the validity of the writ when the writ was ex-facie valid.
iii. Whether the trial Court was right not to have delivered judgment on the merits subject to his order striking out the suit.
Counsel argued the first and the second issues for determination together. Counsel stated that the writ of summons is an originating process and formed the substratum of the case at the trial Court and he conceded that where it is defective it affects the entire proceedings as something cannot be placed on nothing and he referred to the case of Fatoki Vs Baruwa (2012) 14 NWLR (Pt 1019) 15. Counsel stated that the writ of summons in issue in the instant case was issued by the lower Court on the 4th of November, 2009 and that this was pursuant to an application made to the lower Court by Counsel to the Appellant as in Form 1 in the appendix to the Rules of the High Court of Plateau State. Counsel further conceded that it is beyond argument that all Court processes must be signed by a legal practitioner and that this was in consonance with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act Cap L10 Laws of the Federation 2004 and he again referred to the case of Fatoki Vs Baruwa supra.
Counsel stated that looking at the writ of summons in question in this case, it was endorsed and signed by G. Ofodile Okafor SAN, OON, MCIarb (UK) as the Appellant?s legal practitioner and that he is a person whose name is on the roll and qualified to practice as a barrister and solicitor in Nigeria, and this is a fact that Court is obligated to take judicial notice of by virtue of Section 122(j) of the Evidence Act. Counsel stated that the contention of the lower Court that the writ was invalid because the signature and the name of G. Ofodile Okafor, SAN, OON, MCIarb (UK) appears directly above the endorsement on the writ, to wit: ?This Writ was issued by G. Ofodile Okafor & Company? is not sustainable in view of the decisions in the cases of SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317 and Elaigwe Vs Tong (2016) 14 NWLR (Pt 1532) 165 on how a Court process should be signed by Counsel.
Counsel also referred to the case of Okpe Vs Fan Milk Plc (2017) 2 NWLR (Pt 1549) 282 on the suggested manner of signing Court processes and stated that the writ of summons met the requirements.
Counsel stated that it evident from the authorities that a writ of summons is incurably defective where it is signed in the name of law firms or the name of the legal practitioner who signed it is not indicated and he referred to the case of Olaiya Vs Lasisi (2014) 5 NWLR (Pt 1400) 269. Counsel stated that it is such circumstances that a Court has the right to raise the issue of the validity of the writ suo motu and request the parties to address on it and not where the writ was ex facie valid and that the lower Court was thus in error when it raised the issue of validity of the writ of summons in this case on its motion. Counsel stated that the lower Court, by its attitude and approach, enthroned technicality over and above substantial justice, contrary to the canvassed position of the Court on adjudication of cases and he referred to the cases of Fatoki Vs Baruwa supra, Destra Investment Ltd Vs FRN (2017) 2 NWLR (Pt 1550) 485 and Wassah Vs Kara (2015) 4 NWLR (Pt 1449) 374. Counsel urged the Court to resolve the first and second issues for determination in favour of the Appellant.
On the third issue for determination, Counsel reiterated that trial in the matter had been concluded before the lower Court and that the parties had filed and their Counsel had adopted their respective final written addresses in the matter and he stated that in such circumstances the lower Court ought to have proceeded, after striking out the case of the Appellant, to consider and deliver judgment on the merits of the case and make the judgment subject to the order of striking out. Counsel stated that this is what the appellate Courts have always enjoined trial Courts to do and he referred to the cases of Action Congress Vs Jang (2009) 4 NWLR (Pt 1132) 475, Orji Vs PDP (2009) 14 NWLR 310. Counsel urged this Court to resolve the third issue for determination in favour of the Appellant.
Learned Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.
In his response arguments, Counsel to the Respondents apparently adopted the issues for determination as formulated by Counsel to the Appellant, as he did not formulate any issue for determination. In arguing the issues for determination, Counsel referred to the provisions of Order 5 Rules 1 and 12 of the Plateau State High Court Civil Procedure Rules 1987 and the Writ Form 1 in the appendix and stated that a writ of summons is issued by a Judge on the application filed to that effect by the legal practitioner to the plaintiff. Counsel referred to the provisions of Legal Practitioners Act and stated that a legal practitioner is defined therein as someone whose name was on the roll and entitled to practice as a barrister and solicitor. Counsel stated that looking at the writ of summons in the instant case, it was stated thereon that the application for the issuance of the writ of summons was made on behalf of the Appellant by G. Ofodile & Company, who is not a legal practitioner whose name is on the roll, and not by G. Ofodile Okafor, SAN, OON, MCIarb (UK) and that this was the basis upon which the lower Court held that the writ of summons was incompetent.
Counsel stated that the fact that the signature and the name of Counsel to the Appellant, G. Ofodile Okafor, SAN, OON, MCIarb (UK), appeared above the endorsement on the writ did not, and could not cure the defect and that the decisions in the cases of SLB Consortium Vs NNPC supra, Okpe Vs Fan Milk Plc supra and Olaiya Vs Lasisi supra were not helpful to the case of the Appellant. Counsel stated that the issue of the validity of the writ of summons was one that the lower Court could legitimately raise, in the circumstances of the case, and direct the parties to address it thereon as it cannot be said that a writ of summons issued on the application of a law firm was ex facie valid. Counsel stated that it was incorrect that the lower Court enthroned technicality over substantial justice in its approach to the case as it is trite that where the law provides a procedure for doing a thing, then that procedure must be followed and that the rules of Court for doing an act must be obeyed and he referred to the case of Kwali Vs Dobi (2010) All FWLR (Pt 506) 1883, Ogundimu Vs Kasunmu (2006) All FWLR (Pt 326) 207 and I. T. I. Ltd Vs O. C. B. Ltd (2015) All FWLR (Pt 797) 722.
Counsel stated that the failure to comply with the express provision of the law in the instant case was not of a minimal kind and that it went to the root of the matter because unless a suit is properly and legally initiated, it does not have life and a Court is bereft of jurisdiction to entertain same and he referred to the case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 234. Counsel stated that it is a misconception of the law that the lower Court ought to have proceeded to consider the merit of the case presented before it after finding that the writ was incurably bad as such a writ is liable to the struck out and that a Court cannot proceed to make pronouncement after such striking out. Counsel urged the Court to resolve the issues for determination in favour of the Respondents.
Counsel concluded his arguments by praying the Court not to find merit in the appeal and to dismiss same and uphold and affirm the judgment of the lower Court striking out the suit.
The law is settled beyond per adventure that the practice of law in Nigeria is the exclusive preserve of legal practitioners that have formally qualified to practice law in the country and by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, these are the persons whose names are listed on the Roll of Barristers and Solicitors in the Supreme Court. The Supreme Court has, in interpreting the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in a long line of cases, stated and reiterated this fact and has opined that since the practice of law includes the drafting and signing of Court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign Court processes for filing in our Courts, and that the only exception is where processes are signed by a litigant who chooses to represent himself.
Thus, the law is that all Court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria, Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19.
The Supreme has stated severally that to constitute a proper signing of a Court process, it must carry the signature or mark of the legal practitioner who signed it and that name of the said legal practitioner must be clearly indicated on the process as the person who affixed the signature or mark and that once it cannot be said who signed the process, then it is incurably bad, Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), GT Bank Plc Vs Innoson Nigeria Ltd (2017) LPELR 42368(SC), Nnalimuo Vs Elodumuo (2018) LPELR 43898(SC).
It was in this wise that the Supreme Court gave a guideline to be followed by legal practitioners in the signing of Court processes and it is that the signature column of the process should reflect thus: First, the signature or mark of Counsel, which may be any contraption; secondly, the name of the Counsel clearly written; thirdly, who the Counsel represents; and fourthly, the name and address of the legal firm, SLB Consortium Ltd Vs NNPC supra, Daniel Vs Independent National Electoral Commission (2015) LPELR 24566(SC), Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC), Dickson Ogunseinde Virya Farms Ltd Vs Societe Generale Bank Ltd (2018) LPELR 43710(SC).
Once the signature column of a Court process complies with the guideline laid down by the Supreme Court in substantial particulars, then it must be held to have met the requirements of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act. A look at the writ of summons in issue in the instant case shows clearly that after the endorsement of the claims of the Appellant, there is a distinct signature, followed by the name of G. Ofodile Okafor, OON (SAN), MCIArb (UK), indicating the owner of the appended signature, and then the name and address of law firm, G. Ofodile Okafor & Company whose address for service is No. 42, Tudun Wada Ring Road, Jos, and lastly that the firm was representing the Appellant. The signing of the writ of summons was in clear compliance with the laid down guideline for signing Court processes and it thus met the requirements of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act.
The lower Court and Counsel to the Respondents suggested that the writ of summons did not comply with the provisions of Order 5 Rule 1 of the High Court of Plateau State Civil Procedure Rules 1987. Order 5 Rule 1 reads that a writ of summons shall be issued by a Judge or an officer of the Court empowered to issue summonses, on application and that the application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in the appendix to the Rules. Order 5 Rule 12 states what the plaintiff’s solicitor should endorse on the application in Form 1 and it provides that where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and legal practitioner’s name or firm and a business address of his within jurisdiction.
Thus, by the provision of Order 5 Rule 12 of the Rules, it is sufficient if the name of the firm of the legal practitioner or his name is endorsed on Form 1. The word used in the provisions is ‘or’, not ‘and’. The word ‘or’ when used in a statute is a disjunctive participle used to express an alternative or to give a choice of one among two or more things, Aruba Vs Aiyeleru (1993) 3 NWLR (Pt 208) 126 at 141-142 and Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1. The writ of summons in the present action showed on its face that it was duly issued by a Judge of the Plateau State High Court and that it was endorsed with both the name of the legal practitioner to the Appellant and the name of the law firm as well as with the business address of the legal practitioner within jurisdiction. Where then is the non-compliance
The lower Court committed two fundamental errors in its approach to the interpretation of the endorsements contained on the face of the writ of summons. It completely ignored and closed its eyes to the signature and name of Counsel, G. Ofodile Okafor Esq. OON (SAN), MCIArb (UK), contained directly above the endorsement: ‘This Writ was issued by G. Ofodile Okafor & Company’.
It behaved as if the signature and the name of Counsel did not exist and it focused its attention and harped only on the endorsement. The lower Court obviously forgot that the writ of summons is a document and that one of the most settled principle of law in interpreting a document is that the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts, Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt 1188) 429.
If the lower Court had applied this principle in interpreting the endorsements on the writ of summons, it would have seen that the signature and name of Counsel on top of the endorsements qualified the assertion that the writ was issued by G. Ofodile Okafor & Company by indicating G. Ofodile Okafor Esq. OON (SAN), MCIArb (UK) as the Counsel in G. Ofodile Okafor & Company who issued the writ.
Secondly, the lower Court approached the interpretation of the endorsements on the writ of summons like a robot and it applied a mechanical thinking thereto. It has been stated time and time again that a Judge is not a robot nor an automation which has no mind of his own such that once he is fed with data produces an automatic answer, Fawehinmi Vs Akilu (1987) 4 NWLR (Pt 67) 797, Magit Vs University of Agriculture, Makurdi (2006) All FWLR (Pt 298) 1313, Olusanya Vs United Bank of Africa Plc (2017) LPELR 42348(CA), Doherty Vs Yusuf (2017) LPELR 41998(CA). A Judge, being a human being, must operate like a human being and not be mechanical in his approach to legal issues and this is particularly more so when dealing with the question of interpretation of Rules of Court or of documents, Iwunze Vs Federal Republic of Nigeria (2014) LPELR 22254(SC), MTN Nigeria Vs Anene (2018) LPELR-CA/A/82/2017.
It is in this wise that it is a rule of interpretation that commonsense, which distinguishes human beings from robots, must be applied in construing documents and statutes and that the construction agreeable to justice and reason must always be adopted ?Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt 1097) 12, Congress for Progressive Change Vs Independent National Electoral Commission (2012) 1 NWLR (Pt 1280) 106, Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2016) 7 NWLR (Pt 1510) 10. This position of the law is well captured in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
”In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”
If this approach had been applied by the lower Court to the endorsement on the writ of summons in the instant case, it would have been obvious to it that the signature and the name of Counsel were not included thereon for decoration, and that they formed part of the information indicating the identity of the legal practitioner who issued the writ of summons.
The findings of the lower Court that the writ of summons issued in this suit violated the provisions of Section 2(1) and 24 of the Legal Practitioners Act and is thus incompetent and incurably bad is, with respect, illogical and without basis in the light of the endorsements contained on the face of the writ of summons.
A worrying aspect of this case is that the issue of the invalidity of the writ of summons was not raised by the Respondents. The Respondents were fine with the writ of summons as it was. They were clear in their mind, and were not misled, on the identity of the legal practitioner of the Appellant who issued and signed the writ of summons. They filed their processes on the strength of the writ of summons and parties led evidence and concluded trial on that basis. The records of appeal show that the writ of summons as endorsed was issued by a Judge of the High Court of Plateau State, and this definitely must have been upon the Judge being satisfied that the writ satisfied the requirements of the law. The records show that the case was before High Court 1 Plateau State from 2009 when the writ was taken out until 2013 when it was reassigned to the lower Court, and the Judge presiding in the High Court 1 did not see any fault with the writ of summons.
The records show that the lower Court upon receipt of the case file in 2013 did not indicate that there was any error with the writ of summons and that it conducted trial on the basis of the writ of summons from 2014 through to 2016 and it took final addresses of Counsel on the matter and adjourned same for judgment. It was thereafter that the lower Court, in the inner recess of its chambers, discovered the supposed invalidating feature on the writ of summons and raised the issue suo motu. The lower Court, after considering the addresses of Counsel on the issue so raised, decided the fate of the matter, in which it had concluded trial, on the basis of said issue without going further to consider the merits of the case.
This is despite the several admonitions of the Supreme Court that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court, after resolving that issue, even if it is an issue jurisdiction, to proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues, see the cases of Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
The necessary deduction from the attitude of the lower Court in this case is that it raised the phantom issue of validity of the writ of summons as a means of finding a shortcut to delivering a judgment and to avoid its responsibility of resolving the matter on the merits; a complete waste of the period of seven years, 2009 to 2016, expended on the matter before the lower Court. This is second time in the last few months that this Court will be confronted with such a case from the Plateau State High Court; where the Judge will after concluding trial and adjourning for judgment, raise a spurious issue on the validity of the writ of summons and decide the matter on that spurious issue without going into the merits of the case tried before it. The other case was Appeal No CA/J/309/2017, Moses Jwan Vs Eco Bank Nigeria Plc & Another and in respect of which this Court delivered judgment on the 24th of April, 2018.
Cases like these call into question our sense of justice; whether the Courts involved understand the concept of justice and what the role of the Court should be in facilitating justice. This question is also very pertinent at this time in view of the growing trend amongst lawyers to seek to truncate cases by raising what, in the view of this Court, are spurious, and sometimes ludicrous, objections. For example, where, say, the name of a Counsel on the roll and in which his practice stamp is issued is Fredrick Olusegun Da-Silva and he issues a process in the name of Fredrick Da-Silva or as Olusegun Da-Silva and affixes the stamp carrying his full names of Fredrick Olusegun Da-Silva to the process, some lawyers file objection challenging the competence of the process on the ground that the name of the stamp is different from name of Counsel. These lawyers file such objection without first making any attempt to show that there is in existence another registered legal practitioner bearing the names Fredrick Olusegun Da-Silva, different from the Counsel who filed the process and the amazing thing is that they find decided cases to cite in support such objections.
We must begin to interrogate ourselves on what exactly our understanding of the concept of justice is and should be. We often emphasize on the phrase ‘substantial justice’ and pride ourselves that the cherished current trend in our Courts is to ensure that substantial justice, as against the highly misplaced technical justice, is accorded to all manner of parties, at all times, without fear or favour, affection or ill will, and then matters like the present one, many more like it, surfaces and they cannot be reconciled with the doing of substantial justice. The common denominator of the concept of justice is that decisions or outcomes of legal proceedings must be in tandem and consistent with the substantial rights of parties to a case; anything short of this is a miscarriage of justice, Larmie Vs Data Processing Maintenance & Services Ltd (2005) 18 NWLR (Pt 958) 438, Gbadamosi Vs Dairo (2007) LPELR 1315(SC), Pam Vs Mohammed (2008) 16 NWLR (Pt 1112) 1, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523. In Ntukidem Vs Oko (1986) 12 SC 126 at 168, Karibi-Whyte, JSC, made the point thus:
”It is both fundamental and an elementary principle of the administration of justice that whenever it is possible to determine a case on its merit the Court should not succumb to the temptation of hastily determining it in limine without hearing the complaint. ? there is a real need for the Court to appreciate the interest of the proper administration of justice which demands that a complainant should be given reason opportunity of presenting his case for its determination on the merits.”
The aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system. As Martin Luther King Jnr is quoted to have stated ‘law and order exist for the purpose of establishing justice and when they fail in this purpose, they become structured dams that block the flow of social progress.’
There is no law that can guarantee that everyone’s, or even a majority’s, sense of justice will be carried out. Instead we have laws that attempt to do the heavy lifting in providing the machines that gives everyone a chance at justice and the rest is left for administration of justice system to ensure that justice is done to all and sundry. Justice is fairness; fairness in adjudication, fairness in the process of adjudication and fairness in the ultimate decisions reached by the Court. It behooves the Courts to do everything to ensure the doing of justice in each and every case that comes before them. We must protect the administration of justice system from being the butt of beer parlour jokes and discussions.
Matters like the present one, where it is the Court that went searching for an unfounded and baseless technical objection to truncate a concluded matter after it has been set down for judgment, must leave a bad taste in the mouth of anyone, especially the litigants, and open up the entire judicial system to ridicule and put it at risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) sounded a note of warning against such attitude by the Courts many years ago in State Vs Akpabio (1993) 4 NWLR (Pt 286) 204 at 220 thus:
”I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.”
There is a need for us to reiterate and remind ourselves of this warning today because of the current trends and developments in our administration of justice system.
In conclusion, this Court finds merit in the appeal and it is hereby allowed. The judgment of the High Court of Plateau State delivered in Suit No PLD/ J477/2009 on the 15th of December, 2016 by Honorable Justice D. G. Mann is hereby set aside. The case file of the matter is remitted to the Chief Judge of Plateau State for reassignment to another Judge for a hearing de novo. It is hereby directed that the lower Court should expedite and accelerate the hearing of the matter. Parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Judgment of my learned brother Abiru, J.C.A just delivered. I completely agree with his reasoning and conclusion arrived thereat, that the appeal is meritorious and succeeds. My learned brother had ably considered and resolved the issues raised for determination in this appeal. I have nothing more to add. I adopt same as mine.
I also allow the appeal and abide by the consequential orders contained in the lead Judgment, inclusive of costs.
ADAMU JAURO, J.C.A.: I had a preview of the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and for the reasons advanced therein, I entirely agree with the conclusion he arrived at, that the appeal has merit and same should succeed.
I adopt the said judgment as mine, and join my brother in allowing the appeal. I abide by all consequential orders made therein.
Appearances:
G. Ofodile-Okafor, SAN, with him, P. S. Tungyang, D. A Dalong and J. C. UgwuFor Appellant(s)
Dr. F. M. Kwede with him, S. T. Ahile, T. B. Quidom and Daniel MattaFor Respondent(s)
