CHIGBO v. OJU & ORS (2022)

CHIGBO v. OJU & ORS

(2022)LCN/16266(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/A/515/2011

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

CHIEF EDWIN CHIGBO APPELANT(S)

And

1. FOLUKE OJU (Suing By Her Lawful Attorney Erosod Water Works) 2. HON. MINISTER, FEDERAL CAPITAL TERRITORY. 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 4. ALHAJI ABDUHURAIRA A. AMINU RESPONDENT(S)

RATIO:

WRIT OF SUMMONS IS AN INITIATING LEGAL PROCESS BY WHICH THE JURISDICTION OF A TRIAL COURT CAN PROPERLY AND VALIDLY BE INVOKED

There is no arguing the fact that a writ of summons is an originating process. It has been described as an initiating legal process by which the jurisdiction of a trial Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that Court to seek for the reliefs or remedies against another. Zenith Bank Plc vs. Mrs Elizabeth Umom (2013) LPELR–22001 (CA) per Garba, JCA as he then was. Ogunbiyi, JSC, in Braithwaite vs. Skye Bank Plc (2012) LPELR–15532 (SC) described a writ of summons as 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 and the Court will be paralyzed in assuming jurisdiction where the process fails to comply with the requirement of the law regulating its procedure. HAMMA AKAWU BARKA, J.C.A.

A LAW FIRM IS NOT A LEGAL PRACTITIONER SO IT CANNOT SIGN AND ISSUE LEGAL PROCESSES UNDER THE ACT

ORIGINATING PROCESS HAVING SIGNED IN THE NAME OF A LAW FIRM IS INVALID

The defect in an originating Court process, in this case, the non-signing by a legal practitioner known to law where it is so required, goes to the jurisdiction of the Court, in other words, the originating process having been signed in the name of a law firm and thereby filed is invalid, incompetent and a complete nullity. Luckily, learned counsel for the respondents owned up to this fatality, the consequence of which is that the trial Court ought to have struck out the suit. The aggregate of all the cases above cited agrees with the established legal position that an originating process not signed by a qualified and recognizable legal practitioner is invalid, and robs the Court of its jurisdiction to try the suit, and on that basis, any purported proceedings based on the said invalid or incompetent process amounts to a nullity, void and of no value whatsoever. Such is the fate of the defective writ of summons, which originated the present appeal.
See, Registered Trustees, Apostolic Church vs. Akindele (1967) SCNLR 205; Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521; SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (pt. 1252)317; Eze vs. Okechukwu (2015) 10 NWLR (pt. 1467) 307; Okarika vs. Samuel (2013) 7 NWLR (pt. 1352)19; Osun State Property Development Corporation vs. Iyiola (2011) LPELR 4807; Kente vs. Ishaku (2017) 15 NWLR (pt. 1587) 94. HAMMA AKAWU BARKA, J.C.A.

A COUNTER CLAIM IS A SEPARATE CLAIM

THE JURISDICTION OF A COURT TO HEAR A MATTER

As a general rule, this Court being an intermediate Court, there is ordinarily that duty placed on it to pronounce on all issues before it. The law however permits of certain exceptions to that general rule, and one of such is where the Court is divested of jurisdiction to hear the appeal in the first place. This Court having determined and concluded that the lower Court labored in vain, being devoid of jurisdiction, that virus equally affects the present Court, and where a Court lacks the jurisdiction to hear a matter, any pronouncement on the main issue and/or other issues will be merely academic, and an exercise in futility. Ngwuta JSC in the case of Dr Okey Ikechukwu vs. FRN (2015) LPELR-24445 (SC) emphasized that legal position having stated that:
“If the Court has no jurisdiction to hear the matter, a pronouncement on the main issues in the appeal will be an exercise in futility as any proceeding conducted without jurisdiction is a nullity no matter how diligently conducted. See National Bank vs. Shoyoye (1977) 5SC 181, Ndaeyo vs. Ogunaya (1977) 1SC 11. HAMMA AKAWU BARKA, J.C.A.

ALL COURT PROCESSES MUST BE SIGNED IN THE MANNER PRESCRIBED IN THE LEGAL PRACTIONER’S ACT

THE COMPETENCY AND THE CIRCUMSTANCES OF A WRIT OF SUMMONS

In the peculiar circumstances of this matter, it is the writ of summons that constitutes the substructure on which the superstructure of the pleadings are built. The writ being incompetent, no competent pleadings would exist. The statement of claim will be a nullity and being a nullity, the statement of defence will equally be a nullity since there is no competent statement of claim that it is joining issues with. This being so, the counter-claim which is endorsed on the statement of defence and which the statement of defence carries like a kyphosis, cannot escape being inflicted by the same incompetence that is rooted in the writ of summons: AJAO vs. OGUNTOLU (supra) at 25-27. In the circumstances, the appellant cannot have judgment entered for him on the counter-claim. The incompetent processes could not have spawned a proper trial on which any valid judgment could have been pronounced. The Latinism is ex nihilo, nihil fit (out of nothing, nothing comes): 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. HAMMA AKAWU BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of the Federal Capital Territory in suit with No. FCT/HC/CV/1528/2006, delivered on the 6th day of June, 2011, wherein judgment was entered for the plaintiff.

In brief, the 1st respondent Foluke Ojo as plaintiff before the lower Court caused a writ of summons to issue against the 2nd, 3rd and 4th respondents, wherein she claimed for the following reliefs:
i. A declaration that the plaintiff is the rightful owner/allotee or holder of the statutory right of occupancy over the plot of land known as plot No. 1365 lying, situate and being at Maitama District A5, Abuja measuring about 1,021M2 and covered by a Right of Occupancy No. FCT/ABU/KG. 3026 (now FCT/ABU/KG.10318) within the jurisdiction of this Honourable Court, bound by Beacon Nos PB3283, PB3290, PB3293 and PB3770 and adjourned by plot Nos. 1242 and 1271.
ii. A declaration that the 1st and 2nd defendants cannot in law divest, confiscate or acquire the plaintiff parcel of land to wit, plot No.1365 Maitama District, A5 Abuja measuring about 1,021M2 and covered by a Right of Occupancy No. FCT/ABU/KG. 3026 (now FCT/ABU/KG. 10318) and purportedly re-allot same without complying with the mandatory requirements of the Land Use Act, 1978 and the Constitution of the Federal Republic of Nigeria, 1999.
iii. A declaration that any purported revocation and/or re-allotment of the Plaintiff parcel of land to wit, plot No. 1365 Maitama District, A5 Abuja by the 1st and 2nd defendants to the 3rd defendant or any person is null and void and of no effect whatsoever as same is a flagrant violation of the mandatory provisions of the Land Use Act 1978 and the Constitution of the Federal Republic of Nigeria, 1999.
iv. An order of perpetual injunction restraining the defendants either by themselves, agents, privies, assigns or whosoever so called from interfering or doing anything whatsoever including revocation, alienation, re-allocation of the plaintiff’s right or enjoyment over the said plot No. 1365 Maitama District A5 Abuja to any person including the 3rd defendants.
v. An order of perpetual injunction restraining the 3rd defendant from trespassing, further trespassing, occupying or doing anything whatsoever on the said plot No. 1365 Maitama District, A5 Abuja.
vi. An order directing the 1st and 2nd defendants to issue the plaintiff the certificate in respect of the said plot 1365 Maitama District Abuja, the plaintiff having satisfied all conditions.
vii. N100,000,000 (One Million Naira) only being general damages for trespass committed by the defendants on the said land.

Upon being served the originating processes, the 1st–3rd defendants filed their respective statements of defence, and in the course of trial, the 4th defendant with the leave of Court applied to be joined as a defendant, and having been so joined, filed a statement of defence and counter-claim as well as the requisite witness depositions. Issues having been joined, the case proceeded to a protracted trial, wherein the plaintiff called one Mr. Ujuomor, the Manager of the Lawful Attorney of the plaintiff who testified as Pw1, and thereafter closed its case. The 1st and 2nd defendants on their part called, Oluwaseun Oni, a senior estate officer with the 2nd defendant, who gave evidence as Dw1, and also closed their case. The 3rd defendant testified for himself and was recorded as Dw2. The 4th defendant testified as Dw3, tendered 33 documents and called two further witnesses, including one Inspector Raphael Onwuzuligbo, a Police Officer attached to the forensic science laboratory D. Department, Alagbon Close Ikoyi Lagos, who testified as Dw4. At the close of trial, written addresses were ordered, filed and adopted, thus enabling the lower Court to deliver the vexed judgment on the 2nd day of June, 2011 in favor of the plaintiff.

The 4th defendant displeased with the judgment rendered by the lower Court caused a Notice of Appeal to be filed against the said judgment on the 15th of July, 2011 predicated upon 20 grounds; the extant Notice of Appeal being the further amended Notice of Appeal filed on the 2nd day of March, 2021.

The appeal having been properly entered to this Court, appellant filed a brief of argument on the 28th of May, 2012 deemed filed on the 10th of December, 2012. The 1st respondent filed a brief on the 17th of January, 2021, but properly deemed filed on the 1st day of February, 2022. The 2nd and 3rd respondents filed a joint brief on the 27th of September, 2021. Worthy to note is that 4th respondent failed to or elected in not filing any brief of argument.

In the further amended brief settled for the appellant by Uwazuruonye Uchenna Ernest, and at page 5 of the said brief, the following issues were identified for the resolution of the appeal as follows:
i. Whether the writ of summons issued by Alex A, Iziyon & C0 and not the Registrar of the trial Court is not incompetent and as such robbed the trial Court the jurisdiction to entertain the suit.
ii. Whether the writ of summons is not incompetent having been endorsed by unknown persons and contrary to the Legal Practitioners Act.
iii. Whether the non-consideration of the appellant’s alternative claim before the Hon. Trial Court does not violate his right to fair hearing.
iv. Whether by the contents of the Power of Attorney the Plaintiff did not totally divest her interest on the property and rendering the power of Attorney registrable.
v. Whether the evidence of PW1 admitted and relied upon by the learned trial Judge is not hearsay evidence and/or such discredited evidence that the Hon. Trial Court ought not to rely on.
vi. Whether the 1st respondent proved her title to Plot 1365 cadastral zone AO 5 independently and/or by virtue of Exhibit P11B and/or Exhibit P2.
vii. Whether the learned trial Judge did not err in law and misdirect himself in holding that the Notice of Revocation was not properly served on the plaintiff by rejecting the evidence of DW1 and holding that the 2nd and 3rd respondents delivered letters to the 1st respondent at his Glory Plaza, Wuse 2 Abuja.
viii. Whether the inability of the plaintiff to prove her existence and the authorization of the suit by its agent company, when challenged to do so does not rob the trial Court the jurisdiction to entertain the suit.
ix. Whether the Honourable Trial Court did not err by refusing to accept and act on the uncontroverted expert evidence of the DW4 and DW5.
x. Whether the learned trial Judge correctly applied the doctrine that ‘’Facts admitted need no further proof’’ based on the facts and circumstances of this suit.
xi. Whether the judgment was not perverse and a nullity having been delivered without the record of evidence of key witnesses, without proper evaluation of evidence of the parties and in violation of Section 294 of the Constitution.

The 1st respondent on his part, and in the brief settled by Chike S. Ekeocha, enumerated the following issues as deserving in the resolution of the appeal:
i. Whether the writ of summons issued by Alex A. Izinyon & Co and not the registrar of the trial Court is not incompetent and robbed the trial Court the jurisdiction to entertain the suit?
ii. Whether the writ of summons is not incompetent having been endorsed by unknown persons and contrary to the Legal Practitioners Act?
iii. Whether a Court was bound to consider and grant the alternative reliefs of special and general damages, claimed by the Appellant after his main relief for declaration of title in his counter-claim had failed.
iv. Whether the Honourable Trial Court was right when it held that Exhibit P1 the Power of Attorney tendered in evidence for the sole purpose of proving the authority of the 1st Respondent’s lawful attorney to sue without more, needs to be registered to be admissible.
v. Whether the evidence of PW1 given under oath by way of affidavit in compliance with Order 4 Rule 15(c) of the High Court of Federal Capital Territory Abuja, (Civil Procedure Rules) 2004 and Section 38, 107, 109 and 115 of the Evidence Act is hearsay evidence or discredited evidence.
vi. Whether the Honourable Trial Court having found that the right of the 1st respondent was not validly revoked by the 2nd and 3rd respondents and having nullified the purported re-allotment to the 4th respondent, was right to have dismissed in entirety the counter-claim before it.
vii. Whether the Honourable Trial Court below was right when it held that the 2nd and 3rd respondents did not serve any Notice of Revocation in accordance with Section 44 of the Land Use Act, 1978 on the 1st respondent but that Exhibit P2 was delivered to the 1st respondent to notify her of the change in her Plot No. from 1259 to 1365, Cedastral Zone A05, Maitama, Abuja by the 2nd and 3rd respondent by the evidence before it.
viii. Whether the appellant having alleged at the trial Court the fact of the non-existence of the person of the 1st respondent’s fraudulent procurement of the right over plot 1365, Maitama, Abuja in the 1st respondent’s name as well as the non-authorization of the Board of Directors of the lawful Attorney of the 1st respondent did bear burden of proving the said facts.
ix. Whether the trial Court was bound to accept the evidence of DW4 (Inspector Rapheal Onwuzuligbo) the handwriting expert and DW5 (Wale Arogundade) called by the appellant in defence and counter-claim to the 1st respondent’s suit, in the fact of the manifest contractions in his evidence?
x. Whether the trial Court was right to apply the principle of law that what is admitted need no further proof by the state of the pleadings and evidence since the case before it was not one for declaration of trial strictu sensu.
xi. Whether the judgment of the trial Court was perverse.

The 2nd and 3rd Respondents on their part after formulating a lone issue for the determination of this Court went further to adopt the following issues formulated by the Appellant and submitted for the determination of this Honourable Court in the Appellant’s further amended brief of argument, dated the 2/3/2021 and deemed properly filed and served on the 20/9/2021, renumbered as follows:
1. Whether the jurisdiction of the trial Court was properly invoked through the writ of summons of the 1st respondent which was not signed by either the claimant or her counsel.
2. Whether the non-consideration of the Appellant’s alternative claim before the honourable trial Court does not violate his right to fair hearing.
3. Whether the 1st Respondent proved her title to plot 1365 Cadastral Zone A05 independently and or by virtue of Exhibit P11B and or Exhibit P2?
4. Whether the Learned Trial Judge did not err in law and misdirect himself in holding that the Notice of Revocation was not properly served on the plaintiff by rejecting the evidence of DW1 and holding that the 2nd and 3rd respondents delivered letters to the 1st respondent at his Glory Plaza, Wuse Abuja.

I find it convenient approaching the consideration of this appeal based on the issues promoted by the learned counsel for the 2nd and 3rd respondents, having compressed all the issues into four neat compartments and thereby clearer and all encompassing, starting with issue one which seeks to question the propriety or otherwise of the plaintiffs originating process before the trial Court.

Issue one.
Whether the jurisdiction of the trial Court was properly invoked through the writ of summons of the 1st respondent which was not signed by either the claimant or her counsel.
Grounds one and two of the appellant’s grounds of appeal seeks to question whether the jurisdiction of the Court entertaining the writ of summons which originated the suit before the lower Court, and thereby the instant appeal, was commenced as per the requirement of the law. From issues one and two which germinated therefrom, learned counsel complained that the writ under consideration was not issued by the registrar of the High Court as required by the rules, the writ having been issued by Alex A. Iziyon (SAN) & Co, which is not a legal personality capable of issuing out the writ, and that the writ not having been properly commenced, ousted the jurisdiction of the Court to have entertained the suit. The learned counsel for the 1st respondent identified and conceded to the issue raised as issue one by the appellant as well as issue two formulated viz: Whether the writ of summons is not incompetent having been endorsed by unknown persons and thus contrary to the Legal Practitioners Act. The same issue was argued by the 2nd and 3rd respondent’s counsel having adopted the issue word for word, i.e. whether the jurisdiction of the trial Court was properly invoked through the writ of summons filed by the plaintiff/1st respondent at the lower Court, and answered the question posed in the negative.

Mr. Ikeji, the learned counsel for the 2nd and 3rd respondents did argue and rightly too, that the issue of jurisdiction is so fundamental to the hearing of a matter before it that it can be raised at any time during the trial of a case or even as in the instant case on appeal. Its importance has been likened to a life wire of the case, for where a Court ventures to determine a case for which it has no jurisdiction, all the proceedings including the judgment thereon are rendered void and a useless exercise no matter how expensive or how brilliant and supportable the end result may be. NURTW vs. RTEAN (2012) 10 NWLR (pt. ) 170, Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Western Steel Works Ltd vs. Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617, Adeyemi vs. Opeyori (1976) 9–10 SC 31, Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350.

Once the originating process of a suit is found to be incompetent, that becomes the end of the case, since a valid suit cannot emanate from an incompetent originating process. See, Mo Integrated Realities Ltd vs. Allied Bond Standard Companies Ltd & Ors (2018) LPELR–50153 (CA).

Coming to the case at hand, appellant seeks to strike at the competence of the originating process on two grounds. Firstly, that the writ being challenged, was issued by Alex A. Iziyon (SAN) & Co, who by law is not empowered to issue such writ, and moreover, that a law firm has no legal personality. Principally, appellant argued that by the provisions of Order 4 Rule 1 (1) of the FCT High Court Civil Procedure Rules 2004, under which the suit was commenced provided that:
“A writ of summons shall be issued by a registrar, or other officer of Court empowered to issue the summons, on an application”.
This, the learned counsel for the appellant argued was not adhered to. I have therefore calmly and closely examined the writ being complained about, and it appears evident to me looking at the record, specifically at page 4 thereof, that the writ was issued by Alex A. Iziyon (SAN) & Co. of Plot 1 Kinshasa Street, Wuse Zone 6, Abuja for the said plaintiff. The clear import is that the writ was indeed issued in clear contravention of Order 4 Rule 1 (1) of the rules applicable to the lower Court.
This Court faced with a similar situation in the recent decision of Bedko (Nig) Ltd & Anor vs. Unity Bank & Anor (2018) LPELR–46977 (CA) held as follows:
“In my view, the first port of call is to see the position of the writ of summons vis a vis the law on the subject. Order 4 Rules 1 (1) of the FCT High Court Civil Procedure Rules 2004 provides:-
i. A writ of summons shall be issued by a registrar or other officer of Court empowered to issue the summons on application.
ii. An application shall be made in writing by the plaintiff’s solicitor who completes form 1 as in the appendix.
Order 4 Rule 12 (1) of the FCT High Court Civil Procedure Rules provides:- where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and the legal practitioner’s name or firm and a business address of his within jurisdiction”.
It is vivid from the record as stated earlier, that the law firm of Alex Iziyon (SAN) & Co, issued out the writ in violent contravention of the clear wordings of that rule of Court, which undoubtedly was in breach and rendered the writ defective and incompetent.

As if that is not enough, a law firm is not a legal practitioner known to law nor was it contemplated under Sections 2 and 24 of the Legal Practitioners Act that a law firm should sign in the place of a legal practitioner. The Apex Court in Alawiye vs. Ogunsanya (2013) 5 NWLR (pt. 1348) 570 AT 611, had on the issue, emphasized that:
“A law firm is not a legal person and so cannot under the legal Practitioners Act sign and issue legal processes being a non-cognizable person under the act. A legal process signed and issued by a law firm is incompetent and is liable to be set aside. Processes must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act”
See also Okafor v Nweke (2007) ALL FWLR (pt. 368) 1061, Ewukoya vs. Buari (2016) LPELR 40492 (CA), Fadeyi vs. Owolabi (2014) LPELR–22475 (CA), Abbas vs Terra (2013) 2 NWLR (pt. 1338) 284, Melaye vs. Tajudeen (2011) LPELR–19744 (CA) First bank vs. Maiwada (2013) 5 NWLR (pt. 1348) 444.
I had cause to state in Aberuagba vs. Oyekan (2020) 2NWLR (pt. 1707) 165, that by the combined effect of the provisions of Order 15 Rule 2, and Order 6 Rule 1 of the Lagos State High Court (Civil Procedure) Rules 2004, which rules are akin to the rules governing the instant case, and Section 24 of the Legal Practitioners Act 1975, originating Court processes and pleadings should be signed by either a legal practitioner acting on behalf of the party or by the litigant himself, where he acts without counsel. The defect in an originating Court process, in this case, the non-signing by a legal practitioner known to law where it is so required, goes to the jurisdiction of the Court, in other words, the originating process having been signed in the name of a law firm and thereby filed is invalid, incompetent and a complete nullity. Luckily, learned counsel for the respondents owned up to this fatality, the consequence of which is that the trial Court ought to have struck out the suit. The aggregate of all the cases above cited agrees with the established legal position that an originating process not signed by a qualified and recognizable legal practitioner is invalid, and robs the Court of its jurisdiction to try the suit, and on that basis, any purported proceedings based on the said invalid or incompetent process amounts to a nullity, void and of no value whatsoever. Such is the fate of the defective writ of summons, which originated the present appeal.
See, Registered Trustees, Apostolic Church vs. Akindele (1967) SCNLR 205; Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521; SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (pt. 1252)317; Eze vs. Okechukwu (2015) 10 NWLR (pt. 1467) 307; Okarika vs. Samuel (2013) 7 NWLR (pt. 1352)19; Osun State Property Development Corporation vs. Iyiola (2011) LPELR 4807; Kente vs. Ishaku (2017) 15 NWLR (pt. 1587) 94.
It is true, and I do agree with the submissions of learned counsel that the writ being incompetent, a timeous application ought to have saved the precious time the Court wasted in the consideration of the vain exercise, and thereby see with the appellant and do agree that the trial proceedings done without jurisdiction the result arrived at cannot be allowed to stand. The consequence is that this issue ought to, and is hereby resolved in favor of the appellant.

There is the argument that the counter-claim being a separate claim, and even where the substantive claim fails, the counter-claim ought to have been considered and determined. Appellant now complains that the lower Court failed in its onerous duty and failed to give consideration to the counter-claim. In other words, what happens to the counter-claim, where the main claim is found to be defective?
It is basic and a legal preposition since established that a counter-claim is a distinct action by a defendant against a plaintiff with a distinct and separate life and existence. This simply means that even where the main claim is withdrawn, discontinued, dismissed or struck out, a counter-claim still subsists. See Peterside vs. IMB (Nig) Ltd (1993) 2 NWLR (pt. 278) 712, Susainah Trawling Vessel vs. Abogun (2007) 1 NWLR (pt. 1016) 456, Jeje vs. Enterprise Bank Ltd (2015) LPELR-24829.
Corollary to that is the fact that a writ of summons is the foundation or substratum of a suit required to be commenced by a writ of summons. It is on the writ of summons that all other processes, the statement of claim, statement of defence, counter-claim, reply to the statement of defence and counter-claim, motions and all interlocutory applications are based, and where the writ of summons is incurably defective, as in the case at hand, the foundation of the suit crumbles, and that defect must of necessity bear on the processes tied to it. I restate that where the writ of summons is defective, thus robbing the Court of its jurisdiction of trying the suit, that invalidity equally robs on the counter-claim filed.
Thus in the case of Aberuagba vs. Oyekan (supra), I reasoned thus:
“to insist that the counter-claim in the circumstance can be prosecuted, when there is no writ or statement of claim originating the action amounted to initiating a claim by way of a counter-claim, as against the known four methods of commencing action, to wit writ of summons, originating summons, originating motion and petition… the counter-claimant against the backdrop of there being no valid processes originating the action before the lower Court, ought to have filed a distinct action seeking for the reliefs enumerated in the counter-claim. This is because the consequence of a void act is as if the act never happened in the first place and therefore any rights, privileges or sanctions premised on the void act cannot command any legal existence and the entire judgment a nullity.”
The appellant premised on the above, and the writ of summons being completely and incurably defective, the claim founded thereon as well as any counter-claim built on the said writ ought to have been struck out as the jurisdiction of the lower Court to entertain same was not activated. I did say earlier in the day that appellant promoted a total of eleven issues for resolution, but with the resolution of the first two issues, to the resultant effect that the writ commencing the action was incompetent and liable to be struck out and was in fact struck out, the appeal is as good as having been resolved.

The further cases of AG Lagos State vs. Dosunmu (1989) LPELR–3154 (SC), Mekwunye vs. Emirates Airlines (2019) LPELR–46553 (SC). In the latter case, the Apex Court held that:
“The resolution of issue 5 in favor of the appellant means that the lower Court lacked jurisdiction to entertain the complaint against the award of N250,000.00 as costs. It follows naturally that the question whether the justices of the Court of Appeal were right to have set aside the sum of N250,000.00 awarded by the trial Court as costs, attracts the answer that the lower Court was not right in setting aside that award: since in the first place it acted ultra vires Section 241 (2) of the Constitution. The defect in the competence of the lower Court to entertain that issue is fatal and it renders the proceedings and order on that issue a nullity, no matter how well it may have been conducted and decided. Madukolu vs. Nkendilim (1962) LPELR–24023 SC. In the circumstance, it becomes academic to attempt any discourse now on whether the trial Federal High Court correctly applied the principles for award of costs as stipulated in Order 25 Rules 2 and 7, Federal Civil Procedure Rules 2009”
See also on the same legal principle the cases of, FMH vs. CSA Ltd (2009) 9 NWLR (pt. 114) 3, Brawal Shipping (Nig) Ltd vs. F I Onwadike Co. Ltd (2000) 11 NWLR (pt. 1250) 427 Ovunwo vs. Woko (2011) 17 NWLR (pt. 1277) 522, and Uwazurike vs. AG Federation (2007) 8 NWLR (pt. 1035) 1.
Having concluded therefore that the lower Court was devoid of the necessary jurisdiction to have tried the case in the first place, any further attempt at considering the other issues which arose from the null exercise becomes unnecessary and a pure exercise meant only for the academia without any utilitarian value to the parties. In any case, the case not having been resolved on the merit, any attempt at resolving the issues may pre-empt any issue that may arise should parties still resort to filing the case a new.

I see immense merit in the appeal, and same is hereby allowed by me. Consequently, the judgment delivered by the High Court of the Federal Capital Territory in suit with No. FCT/HC/CV/1528/2006, delivered on the 6th day of June, 2011, wherein judgment was entered for the plaintiff is hereby set aside being a nullity. In its place, the incompetent writ of summons, as well as the counter-claim thereto are hereby struck out.

HARUNA SIMON TSAMMANI, J.C.A.: I agree with the judgment delivered by my learned brother, Hamma Akawu Barka, JCA.

The issue of a Writ of Summons or other originating Court processes is issued or signed in the name of a Law firm, has long been settled in multitude of decisions of the Supreme Court and this Court, such as Okafor & Ors v. Nweke & Ors (2007) LPELR-2412(SC); Hamzat & Anor v. Sanni & Ors (2015) LPELR-24302(SC); F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Adetona & Ors v. Obaoku & Ors (2016) LPELR-41931(CA) and Egunjobi & Ors v. Oluwo & Ors (2016) LPELR-41950(CA). It therefore follows that, the Writ of Summons in this case, having been issued in the name of Alex A. Iziyon & Co. is incompetent being a void or invalid process. Same is hereby struck out including the entire proceedings and judgment given by the trial Court, based on such invalid process.

On the whole, I agree with the reasoning and conclusion reached by my learned brother in the lead judgment. This appeal is therefore allowed. I abide by the consequential order(s) made in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Hamma Akawu Barka, JCA which has just been delivered was made available to me in draft. The manner in which the issues thrust up for determination in the appeal were resolved are in accord with my views. I accordingly adopt the reasoning and conclusion as mine.

All Court processes must be signed in the manner prescribed by Sections 2 (1) and 24 of the Legal Practitioners Act, id est, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court process signed in the business names of a Law Firm is incurably defective ab initio and liable to be struck out: FBN PLC vs. MAIWADA (2013) 5 NWLR (PT 1348) 444, OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 and SLB CONSORTIUM LTD vs. NNPC (2011) 9 NWLR (PT 1252) 317.
As has been demonstrated in the leading judgment, the writ of summons, the originating process by which the action was commenced by the 1st respondent in the lower Court, was issued and signed in the name of the law firm of Alex A. Izinyon (SAN) & Co. This offends the stipulations of Sections 2 (1) and 24 of the Legal Practitioners Act and renders the writ of summons defective, incompetent and liable to be struck out. See OKETADE vs. ADEWUNMI (supra), ALAWIYE vs. OGUNSANYA (2013) 5 NWLR (PT 1348) 570 and FBN PLC vs. MAIWADA (supra).

Additionally, by the stipulations of Order 4 Rule 1 (1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, a writ of summons shall be issued by a registrar or other officer of Court empowered to issue the summons on an application. The law firm of Alex A. Izinyon & Co. which issued the writ of summons by which the action was commenced is neither a registrar nor officer of the lower Court and so on that score, the writ is equally incompetent: BEDKO (NIG) LTD vs. UNITY BANK (2018) LPELR (46977) 1 at 8-10. In allis verbis, the action was in medical parlance DOA (dead on arrival); it was BID (brought in dead), as there was no competent writ of summons to activate the jurisdiction of the lower Court.

The appellant who filed a counter-claim hankers after entry of judgment in his favour on his counter-claim. In AJAO vs. OGUNTOLU (2021) LPELR (56076) 1 at 24-25, I was privileged to state as follows:
“By all odds, it is abecedarian law that a counter-claim is an independent and separate action triable with the main claim for reasons of convenience. Like the main claim, it must be proved by the counter-claimant. Though a separate action, the effect of the incompetence of a main action on the counter-claim would depend on the diacritical facts and circumstances of the case. It is therefore not surprising that the various decisions of this Court on whether the counter-claim survives or would be afflicted by the incompetence of the main claim have turned on the peculiar facts of the particular case. For instance, in DIMACON INDUSTRIES LTD vs. AJAYI-BEMBE (2017) LPELR (42824) (per Georgewill, JCA), it was held that the striking out of the main action for incompetence does not affect the validity of the counter-claim, since it is a separate claim. This decision was followed in TROPICAL CULTURE LTD vs. AKINOLA (2020) LPELR (52214) (per Tsammani, JCA). However, in ABERUAGBA vs. OYEKAN (2018) LPELR (43669) (per Barka, JCA), it was held that a counter-claim cannot be proceeded with where there is no Statement of Claim. A similar decision was reached in FREDERICK vs. UKAEGBU (2019) LPELR (51036) 1 at 22-24 (per Ogakwu, JCA). Recently, in JINADU vs. OSENI (2021) LPELR (54547) 1 at 45-51 (per Georgewill, JCA), it was underscored, in arriving at the decision that the incompetence in the main claim affected the counter-claim, that the effect can only be determined based on the peculiar facts and circumstances of the case.”
In the peculiar circumstances of this matter, it is the writ of summons that constitutes the substructure on which the superstructure of the pleadings are built. The writ being incompetent, no competent pleadings would exist. The statement of claim will be a nullity and being a nullity, the statement of defence will equally be a nullity since there is no competent statement of claim that it is joining issues with. This being so, the counter-claim which is endorsed on the statement of defence and which the statement of defence carries like a kyphosis, cannot escape being inflicted by the same incompetence that is rooted in the writ of summons: AJAO vs. OGUNTOLU (supra) at 25-27. In the circumstances, the appellant cannot have judgment entered for him on the counter-claim. The incompetent processes could not have spawned a proper trial on which any valid judgment could have been pronounced. The Latinism is ex nihilo, nihil fit (out of nothing, nothing comes): 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.

It is for the foregoing reason and the more elaborate reasoning and conclusion explicated in the leading judgment that I equally join in allowing this appeal, and on the same terms as set out in the leading judgment. I abide by the consequential orders made, inclusive of the order as to costs.

Appearances:

Uche Uwazuruonye, with him, James Joshua For Appellant(s)

C.S. Ekeocha – for 1st Respondent
E.C. Ekeji, with him, Kelechi Animba – for 2nd and 3rd Respondent For Respondent(s)

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