DANNET-OWOO & ANOR v. EFFIONG (2020)

DANNET-OWOO & ANOR v. EFFIONG

(2020)LCN/14329(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, June 24, 2020

CA/C/173/2014

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. MR. THEODORE BASSEY DANNET-OWOO 2. HON. OKON NYONG EFFIOM APPELANT(S)

And

FRANCIS EFFIONG RESPONDENT(S)

RATIO

WHETHER OR NOT AN UNSIGNED DOCUMENT IS WORTHLESS

The generally accepted state of the law with regards to unsigned documents is that an unsigned document is worthless and of no use at all. This was the view held by this Court in the case of Mbang vs. Guardian Newspapers Ltd (2010) LPELR – 4470 (CA), that an unsigned document cannot generate or initiate an action, and in law an unsigned document is entitled to no weight. It is incapable of being used by a Court to resolve facts that are disputed in an action between the parties. Similarly in Dantiye and Anor vs. Kanya & Ors. (2008) LPELR – 4021 (CA), this Court opined that failure to sign a document will not only render it worthless, but will also render it inadmissible in evidence; and further in Sarai & Anor vs. Haruna and Ors. (2008) LPELR-4933 (CA), the Court held that an election petition which is either not signed at all or is improperly signed to say the least is invalid and should be struck out. See also Gbadamosi & Anor vs. Biala & Ors (2014) LPELR-24389 (CA), Brewtech Nig. Ltd vs. Akinnawo & Anor (2016) LPELR-40094 (CA), Garuba vs. Kwara Investment Co. Ltd & 2 Ors. (2005) 5 NWLR (pt. 917) 160. Flowing from this state of the law, we must next explore the consequence of a writ not signed as demanded by the rules governing the Court of trial. PER BARKA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

As a starting point, jurisdiction has been held by this Court and the Apex Court in numerous cases, so numerous to count, as being fundamental, likened to the blood that gives life to an action. And where a Court is devoid of or is lacking in jurisdiction to try a matter before it and proceeds to do so, whatever decision arrived at amounts to a nullity, and the fact that it was well conducted and the result brilliantly arrived at nonetheless. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 166) 166, NURTW vs. RTEAN (2012) 10 NWLR (pt. 170).
The template in the determination of the competence of an action is a by product of a host of cases notably the age old case of Madukolu vs. Nkemdilim (1962) 1ALL NLR (pt. 4) 587; which held that:
A Court is competent when:
(i) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another, or,
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) Any defect in competence is fatal for the proceedings are a nullity however well decided, the defect being extrinsic to the adjudication.
In the case at hand, the writ of summons which originated the action before the lower Court, can be seen at pages 10 as earlier indicated in the record of proceedings. Material to our present argument at page10 thereof is, where it was stated;
“This Summons is issued at the instance of N. T. OJONG ESQ. of N. T. OJONG & CO. of 6 Dan Archibong Street, Calabar, Solicitor for the plaintiffs whose address for service is through their solicitor.” PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal seeks to challenge the judgment of the High Court of justice Cross River State; manned by F. Nnang Isoni J, in suit NO. HC/291/2008, between Mrs. Nsa Ekpenyong and Francis Effiong (plaintiffs) and Mrs. Theodore Bassey Dannet-Owoo and Hon. Okon Nyong Effiom (defendants), delivered on the 23rd of December 2013. By the said decision, the claimants were awarded judgement in the following terms:
1. That the claimants are entitled to a statutory right of occupancy of the piece of land situates and lying at 94/104 Atamunu Street by Enebong Avenue, Calabar more particularly described in plan No. TJ SE 221, being a subject of a Certificate of Occupancy No.CA/55577/98 of 22nd October, 1998.
2. The sum of N100,000.00 (One Hundred Thousand Naira) is hereby awarded as general damages against the defendants for trespass and destruction of economic trees.
3. Perpetual injunction is hereby granted restraining the defendants themselves or their agents and servants from further trespass on the land, by the way of building or however dealing with the said piece of land.

HISTORY OF THE CASE.
On the 14/8/2008, the plaintiffs (now respondents) initiated the action leading to this appeal by way of a writ of summons supported by a statement of claim filed contemporaneously, seeking for the following relief:
1. A declaration that they are entitled to a statutory right of occupancy of a piece of land situate and lying at 94/104 Atamunu Street by Enebong Avenue, Calabar, more particularly described in plan No. TJ SE 221, being a subject of a certificate of occupancy No. CA/55577/98 OF 22ND October, 1998.
2. N2,000,000.00 (Two Million Naira) general/special damages for trespass and destruction of economic trees.
3. Perpetual injunction restraining the defendants themselves or their agents and servants from further trespass on the land, by the way of building or howsoever dealing with the said piece of land.

Issues having been joined, and at the close of pre-trial conferencing, parties engaged in a full blown trial.

The 2nd respondent first gave evidence and was recorded as CW 1, while one Archibong Idem Edet next testified for the Claimants and was recorded as CW2, and thereafter closed their case. The 1st

defendant opened their defence and testified as DW1, and also closed the defendant’s case. A total of seven exhibits were tendered by the parties.

At the close of trial, the Court ordered for written addresses, which were filed and adopted, setting the stage for the Court’s judgement which was eventually delivered on the 23rd of December 2013.

Dissatisfied with the judgement of the lower Court, appellants filed a Notice of Appeal on the 19th of March 2014 predicated upon four grounds of Appeal. The name of the 1st respondent, Mrs. Nse Ekpenyong who died in the course of the appeal was struck out with the leave of Court. Consequently, appellant with the leave of Court filed the extant appeal being the third amended notice of appeal filed on the 26/11/2018, deemed filed on the 29/11/2018 now predicted on nine grounds of Appeal.

The Appeal having been entered to this Court on the 2/5/14, parties filed in their briefs of argument. The appellants brief dated the 28/11/18 was filed on the 4th of February, 2019, and in opposing the appeal, Respondent filed a brief of argument thereafter on the 10/4/2019. On the 4/6/2020, when this appeal come up

for hearing, parties identified and adopted their respective briefs, urging the Court to grant their respective prayers.

In the appellants brief settled by Ntufam Mba E. Ukweni (SAN), and at pages 4 – 5 thereof, six issues were formulated for the resolution of the appeal. The six issues formulated are as follows:
1. Whether the learned trial judge was right when he assumed jurisdiction to entertain an incompetent suit that was not initiated by due process of law? (Ground 9).
2. Whether, on the face of Exhibit H and taking into consideration the totality of the evidence before him, the learned trial judge was right to rely on Exhibit E to enter judgment for and in declaring ownership of the land situate at No. 94/104 Atamunu Street by Eneobong Avenue, Calabar in favor of the respondents? (Ground 1).
3. Was the learned trial judge not in error when he reached the conclusion that the claimants were not parties to the proceeding in C/44/75 (Exhibit F) and CA/C/42/2013 (Exhibit H) and that the claims in those suits made no reference to the land in dispute situate at 94/104 Atamunu Street? (Ground 5).
4. Whether on the facts before him, the

learned trial judge properly applied the doctrine of lis pendens and the decision in Mani v. Shanono (2006) 4 NWLR (PT 969) 132 at 137, when he held that the appellants did not take definite steps to prevent the issuance of the certificate of occupancy? (Ground 6).
5. Whether the learned trial judge was right when he failed to consider and make pronouncements on all issues properly raised and placed before him, particularly the germane issue of the refusal of the respondents to produce and tender the letter of administration duly pleaded and on which parties has joined issues for the purpose of it being compared with Exhibit E? (Ground7).
6. Whether on the evidence before him, the learned trial judge was not in error when he awarded damages against the appellants for trespass and when there was, in fact, no evidence of any act of trespass committed by the appellants? (Ground 8)

Worthy of note however, is that only issue one was argued by the Learned Silk, thus, issues 2 – 6 are deemed abandoned.

On the other hand the Respondent, from the brief filed on its behalf settled by N. T. Ojong Esq. and particularly at pages 2 thereof adopted

the Appellant’s issue one, to wit;

“Whether the Learned trial judge was right when he assumed jurisdiction to entertain an incompetent suit”.

This appeal will therefore, be considered and determined upon the Appellant’s issue one, adopted by the Respondent.
Whether the Learned trial Judge was right when he assumed jurisdiction to entertain an incompetent suit that was not initiated by due process of Law.

The summary of the Appellant’s complaint, which this Court has to decide, was paraphrased at page eleven (11) of the Appellant’s brief, which stated as follows: –
“1. The Respondents as Claimants in the trial Court, filed an originating process which was not signed either by the counsel representing them or by themselves as provided by Order 8 of the High Court Rules, 2008.
2. The writ of summons was also not sealed by the Registrar of the High Court.
3. These grave omissions rendered the suit incurably defective, incompetent and robbed the trial Court of the jurisdiction to entertain same.

The respondents also in their conclusion at page 13 of the brief settled by them faulted

the contention of the Appellants, rather contending that: –
Appellant’s complaint that the writ of Summons of 14th August, 2008 was incompetent and that the lower Court had no jurisdiction to entertain the suit is misconceived from the arguments and analysis presented above. The writ was competent for the following reasons.
Writ of Summons is an administrative document which has nothing to do with Court’s jurisdiction.
It was properly signed by the registrar while other accompanying processes were signed by the solicitor and deponents.
If the Respondent’s Counsel must sign and did not sign such was an irregularity which ought to be raised timeously otherwise it was acquiesced.
The issue of non-sealing is a duty of the Court the omission of which cannot be visited on the innocent Respondent.
These omissions were acquiesced for five good years thus, the lower Court properly assumed jurisdiction, adjudicated upon the matter and did substantial justice.

Clearly the plank of the Appellants case is hinged upon two main grounds, firstly, that the writ of summons filed by the Respondents on the 14/8/2008 in Suit No:

HC/291/2008 which generated the instant appeal was not signed by the claimants before the lower Court or their Counsel on their behalf, and furthermore, that the said writ of summons was not sealed by the register of Court as demanded by the rules, thus denying the lower Court the requisite jurisdiction to have entertained the case in the first place and by necessary implication this Court to adjudicate on the issues raised and determined.

Learned Senior Counsel with respect to the signing of the writ of summons, made reference to Order 8 Rule (2) Sub-Rule 1 and 3, and the case of Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65 at 89-90 to argue that the word “shall” imputes mandatoriliness or compulsion:

Also alluding to the case of Madukolu v. Nkemdilim (1962) ALL NLR (pt. 2) 581 at 589-590, where Bairamian FJ stated that;
“A Court is competent when-
(i) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
(ii) The subject matter of the case is within the its jurisdiction, and there is no feature in the case which

prevents the Court from exercising its jurisdiction; and
(iii) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, and any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”

Further alluding to the cases of Kida v. Ogunmola (2006) 13 NWLR (pt. 997) 377, per Mustapha JSC, which held that:-
“Failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter”.
and then argued relying on Buhari v. Adebayo (2014) LPELR 2346 (CA) per Akeju JCA that:
“Failure to sign the writ in the manner required by law fundamentally affects the validity of the Appellants suit, as it calls the competence of the suit and the jurisdiction of the Court into question”.

Learned counsel proceeded to argue that in

any case the failure to sign a writ of summons or any other originating process being fundamental cannot be cured by amending the process. Ministry of Works and Transport, Adamawa State v. Yakubu (2013) ALL FWLR (pt. 694) 23.

On the issue relating to the sealing of the writ by the Registrar of Court, Learned Senior Counsel yet again referred to Order 8 Rule 2 Sub-rule 1 of the High Court (Civil Procedure) Rules, 2008 applicable in Cross River State, and the term “it shall be deemed to be issued” therein to mean that an originating summons or process that is not sealed by the registrar of Court, shall be deemed as not having been issued. Learned Counsel leaned on the provisions of the Supreme Court Practice 1997, vol. 1 at page 76, and the case of Chairman LEDB v. Adewale & ORS (1966) NMLR, 27, to argue that an originating process which requires to be sealed before it is deemed as having been issued not having been sealed, should be taken as not having been issued. The further provisions of Order 54 Rule 4 (b) of the Supreme Court, 2008; and the cases of Re: Pritchard (Deceased) 1962 ALL ER 846, and Nwabueze v. Obi-Okoye (1988)

4 NWLR (pt. 91) 664 at 715 per Karibi Whyte JSC were cited in support of the legal principle.

Learned counsel still relied on Kida v. Ogunmola (2006) ALL FWLR (pt. 327) 402 at 406, to the effect that:-
“The validity of the issue of the originating process is fundamental to the competence of a suit, therefore, failure to commence a proceeding with an originating summons validly issued goes to the root of the case, and any order emanating from such proceeding is liable to be set aside as incompetent and a nullity. Such a flaw clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter…”

Also Integrated Merchants Ltd. v. Osun State Government (2011) LPELR-8803 (CA) Per Adumein JCA which held that: –
“Where the writ of summons is defective, incurably defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand”.

Flowing from the foregoing, Learned Counsel urged this Court to hold that the suit was incompetent ab initio, dead at the point of filing and the trial Court in error when it assumed jurisdiction and

entertained the suit. He urged the Court to hold that the trial was a nullity and a sheer waste of time and thereby to strike out the suit before the lower Court.

Responding to the issue under contention, Mr. Ojong for the Respondent recognised the areas of contention and argued that a holistic survey of Order (7), (8), (10) and (11) of the Rules applicable to the lower Court are preferable in the interest of justice.

Learned Counsel analysed the provisions of Order Seven (7), Eight (8), Ten (10) and Eleven (11) of the rules of the lower Court, contending that the writ of summons cannot be treated in isolation, but the entire bulk of the documents must be examined to see if the process was signed as demanded by law. He opined that the era of technical Justice is long gone for good; thus Order 11 of the same rules of Courts provided that failure to sign or seal the writ may not nullify the proceedings but treated as an irregularity.

Further still, learned counsel argued that the instant action having lasted for five years; Appellant is estopped from raising it at this stage and the cases of Ayonromi v. NNPC (2010) 16 WRN 55, Oloba v. Akereja

(1988) 3 NWLR (pt. 84) 508, Bakare v. A.G of the Federation (1990) 5 NWLR (pt. 152) 516, were cited and relied upon.

He submits that there was no issue of jurisdiction throughout the period the trial lasted, for otherwise the Court would have raised it suo motu. Also submitted that the bulk of the processes accompanying the writ of summon and constituting the writ were all signed.

Learned Counsel also made reference to numerous cases to contend that a writ of summons is an administrative process signed by the registrar or clerk of the Court as defined in the Black’s Law Dictionary, and being an administrative issue it does not affect the jurisdiction of the Court, as the mere omission therein, is a mere irregularity which ought to be timeously raised otherwise it might amount to acquiescence. He maintains that the failure to sign the writ is an irregularity as stated by Agbaje JSC in Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 187, and argued that all that a litigant or his counsel is required to do is to apply for it, and has no business in its issuance or signing.

He related the instant issue to that of paying fees dealt with in

Fada v. Naomi (2002) 22 WRN 181, where it was held that non-payment or inadequate payment of filing fees cannot oust the jurisdiction of the Court.

He insists that the writ of summons filed by the Respondent on the 14th of August 2008 was competent having been signed by the registrar with other accompanying processes which were duly signed.

On the issue of sealing of the writ of summons, learned counsel relying on Fada vs. Naomi (supra) argued that an innocent litigant cannot be made to suffer from the lapses or omission of the Court, consequently, the non sealing of the writ complained of being an omission by the Court cannot render the proceedings void. Counsel on this relied on the decision of Ede vs. Mba (2012) 6 WRN 10, Cooperative and Commercial Bank Nig. Plc vs. AG Anambra State & Anor (1992) 8NWLR (pt. 261) 528 @ 561.

The learned counsel tried to align the non-signing of the writ with non-payment of fees, thus contending that the Court in order to save the case in the interest of the Justice, must allow same to be regularized as was the case in Fada v. Naomi (Supra) per Oguntade JCA (as he then was). He pointed out that the Appellants appeal

is hinged on technical Justice for which the Court must reject in favour of substantial justice,Ede v. Mba, (supra), Bank of the North v. Adegoke (2008) 8 WRN 15.
He finally urged the Court to resolve the lone issue in favour of the Respondent.

Resolution
The starting point in the resolution of this appeal is the provision of Order eight (8) Rule two (2) sub-rule one (1) two (2) and three (3) of the Cross River State High Court (Civil Procedure) Rules 2008 which provides: –
2(1) the registrar shall seal every originating process whereupon it shall be deemed to be issued.
(2) A claimant or his legal practitioner shall on presenting any originating process for sealing leave with the registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the legal practitioner or by a claimant where he sues in person and shall be certified after verification by the registrar as having a true copy of the original process filed.
The writ of summons originating the instant case is located at page 10 of the record. Thereat, it is

obvious that the writ was neither signed by the claimant nor his legal representative on his behalf. Indeed, at nowhere can it be seen that the registrar of the lower Court sealed the writ in conformity with the rules of Court. In fact the writ of summons was not signed. I have earlier on reproduced the provisions of Order 8 Rule 2 of the rules governing the lower Court dealing with the signing and sealing of a writ of summons. The question to be asked is, what is the consequence of an unsigned writ of summons and a writ that is not sealed by the registry?
The generally accepted state of the law with regards to unsigned documents is that an unsigned document is worthless and of no use at all. This was the view held by this Court in the case of Mbang vs. Guardian Newspapers Ltd (2010) LPELR – 4470 (CA), that an unsigned document cannot generate or initiate an action, and in law an unsigned document is entitled to no weight. It is incapable of being used by a Court to resolve facts that are disputed in an action between the parties. Similarly in Dantiye and Anor vs. Kanya & Ors. (2008) LPELR – 4021 (CA), this Court opined that failure to sign a

document will not only render it worthless, but will also render it inadmissible in evidence; and further in Sarai & Anor vs. Haruna and Ors. (2008) LPELR-4933 (CA), the Court held that an election petition which is either not signed at all or is improperly signed to say the least is invalid and should be struck out. See also Gbadamosi & Anor vs. Biala & Ors (2014) LPELR-24389 (CA), Brewtech Nig. Ltd vs. Akinnawo & Anor (2016) LPELR-40094 (CA), Garuba vs. Kwara Investment Co. Ltd & 2 Ors. (2005) 5 NWLR (pt. 917) 160. Flowing from this state of the law, we must next explore the consequence of a writ not signed as demanded by the rules governing the Court of trial.
Nnamani JSC in Skenconsult NIG. Ltd. & Anor vs. Godwin Sekondy Ukey (1981) LPELR 3072 (SC), speaking in tune with the provisions of Section 95 of the Sheriff and Civil Process Act, defined a writ of summons to mean: –
“A writ of summons includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in maintaining such a relief.”

The questions evolving in the instant appeal are not altogether dissimilar with what this Court recently entertained in the unreported case of Chief Emmanuel Ito Nyong Orok vs. Esinjo (Chief) Ekpo Omin Ekpo Eta and Ors., in appeal with No. CA/C/143/2017, delivered on the 22nd of May, 2020. In the case just cited, this Court reasoned that:
The appellant by this issue, no doubt seeks to and does contend that the lower Court was robbed of jurisdiction entertaining the suit leading to the instant appeal, on the premise that the writ which initiated the suit before the lower Court was incompetent, and thereby denied the lower Court the competence and jurisdiction to have entertained the suit in the first place. The incompetency that affected the jurisdiction of the lower Court, counsel argued is premised on the fact that the writ of summons by which the action was commenced was not signed.
As a starting point, jurisdiction has been held by this Court and the Apex Court in numerous cases, so numerous to count, as being fundamental, likened to the blood that gives life to an action. And where a Court is devoid of or is lacking in jurisdiction to try a matter

before it and proceeds to do so, whatever decision arrived at amounts to a nullity, and the fact that it was well conducted and the result brilliantly arrived at nonetheless. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 166) 166, NURTW vs. RTEAN (2012) 10 NWLR (pt. 170).
The template in the determination of the competence of an action is a by product of a host of cases notably the age old case of Madukolu vs. Nkemdilim (1962) 1ALL NLR (pt. 4) 587; which held that:
A Court is competent when:
(i) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another, or,
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) Any defect in competence is fatal for the proceedings are a nullity however well decided, the defect being extrinsic to the adjudication.
In the case at hand, the writ of summons which originated the action before the lower Court, can be seen at pages 10 as earlier indicated in the

record of proceedings. Material to our present argument at page10 thereof is, where it was stated;
“This Summons is issued at the instance of N. T. OJONG ESQ. of N. T. OJONG & CO. of 6 Dan Archibong Street, Calabar, Solicitor for the plaintiffs whose address for service is through their solicitor.”
There is no indication mark or anything to show that the said N. T. OJONG ESQ. of N. T. OJONG & CO. signed the writ.
It becomes clear therefore upon a critical examination of the process, that the writ in issue was neither signed by the plaintiff nor any legal practitioner on his behalf. The nagging question would be, what then is the consequence for the plaintiff or his legal practitioner’s failure to sign the said writ of summons, with respect to the competence of the originating process?
I have been referred to the decision of my learned brother Oyewale JCA, in the case of Bassey & Ors vs. Edem & Ors (2016) LPELR – 42054 (CA), where this Court had this to say:
“Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation.

This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK v. MAIWADA (2012) 51 NSCQR 155 @ 172. The words used in the above quoted rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in by the litigant or by his legal practitioner and to be signed by whoever prepared it. The amended writ here which formed the basis of the exercise of judicial power in this case was not signed by anyone.
The position of the law in this regard is clear and totally unambiguous. As unsigned document is totally worthless and incapable of conferring legal benefits. See GARUBA v. K.I.C LTD (2005) 5 NWLR (PT. 917) 160 AND RABIU ALFA V. ZAKARI 6 EPR 773 AT 778-779. It was contended by Mr. Anana that the issue was a mere irregularity waived by the conduct of the 1st Appellant. As inviting as the argument sounded, it is no sequitur in the face of the state of the law and I am therefore not persuaded. The defect here goes to the jurisdiction and totally affect the competence of the exercise of judicial powers by the learned trial judge. The writ of summons in this case

is on pages 1 and 2 of the Record of Appeal. There is a type-written endorsement on page 2 of the record as follows: This writ was issued by E.N Kanu, Esq, whose address for service is at No. 21 Dennis Osadebay Way Asaba.
Save for the barren type-written statement reproduced above, E. N. Kanu, Esq, who allegedly issued the writ did not sign it. The law is now settled that an originating process, such as a writ of summons and a notice of appeal, must be signed by the litigating party or legal practitioner on his behalf. See EMMANUEL OKAFOR & 2 ORS V. AUGUSTINE NWEKE & 4 ORS (2007) 3 SCNJ 185 (2007) 10 NWLR (PT. 1043) 521; FIRST BANK OF NIGERIA PLC. v. ALHAJI SALMONU MAIWADA (2013) 5 NWLR (PT. 1248) 448 AND AARON OKARIKA & 4 ORS V. ISAIAH SAMUEL & ANOR (2013) 17 NWLR (PT. 1352) 19 AT 43 PER PETER-ODILI, JSC.
The above represent the law as it is today. The Supreme Court further reiterated the position in the recent case of GTB PLC v. INNOSON (NIG) LTD (2017) 16 NWLR PT. 1591 Pg. 181 Pg. 196-197. We therefore submit that all the legal authorities cited and relied upon by the Respondent are inapplicable in the instant appeal. We urge the

Court to uphold the entire Appellant’s argument on this point, that the Respondents having not signed the writ of summons in this matter, the said writ is incompetent and defective and accordingly, the lower Court lacked jurisdiction to have entertained and determined the matter.
In the case of KEYSTONE BANK LTD V. J.O ADEBIYI & SONS (NIG) LTD (2015) 1 NWLR (PT. 1439) 98 AT 11, this Court clearly stated that, a signature is meant to authenticate a document, thus an unsigned writ of summons has no efficacy or value in law, as nobody assumes responsibility for it. In the instant appeal, the unsigned writ is not a mere irregularity but a fundamental defect that makes the whole process fundamentally defective”.
Furthermore, in the recent decision of this Court, which raised similar questions, akin to the case before the Court; Mr. Oscar vs. Lazarus-Undie, (unreported) in appeal with NO. CA/C/165/2014, delivered on the 15th of May, 2020 anchored by self, held that:
“Two facts stand out upon a critical examination of the writ of summons filed before the lower Court. It is plain from the record, specifically at pages 1-2 thereof,

that the writ was neither signed by the claimant nor any legal practitioner on his behalf, nor was the writ sealed by the registrar of the Court, as demanded by the rules of Court, thereby in total breach of the stipulations of Order 8 Rules 1 – 3 of the Rules of Court applicable to the lower Court. Both parties do not dispute the fact that on the face of the writ of summons, there is no evidence that it was not signed by the claimant or his legal representative.
Nnamani JSC defined a writ of summons as being and includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting such relief. See Skenconsult Nigeria Ltd & Anor vs. Godwin Sekondy Ukey (1981) LPELR-3072 (SC). The law is equally positioned to the effect that:
“Initiating a process in Court of first instance or an appeal which lies to an appeal Court has to be sponsored by a person natural or artificial. In case the appeal proceeds from a natural person, it has to be filed and prosecuted by that natural person who has the capacity to see, hear,

talk feel or perceive or where circumstances demand by his counsel who has the same qualities/capacity”. See Aaron Okarika & Ors vs. Isaiah Samuel & Anor (2013) LPELR-19935 (SC) per Muhammad JSC.
Also in the recent case of Febson Fitness Centre vs. Coppa H. Ltd (2015) 6NWLR (pt. 1455) 263 @ 278, where the Court held that:
“The principle of law is that an originating process whether writ of summons, originating summons or Notice of Appeal must be valid in order to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. But where the process is not signed by a litigant or his counsel, the process is invalid and the jurisdiction of the Court is ousted”.
Mr. Nachamanda of learned counsel for the appellant cannot be wrong in asserting that the writ of summons which was not signed by the respondent and or his counsel acting on his behalf rendered the writ incompetent and robbed the lower Court of the necessary jurisdiction to entertain it. The case of Keystone Bank Ltd vs. J.O.A & S (Nig) Ltd (supra), which held that:
“The originating process, that is the writ of

summons in suit No, NSHC/SD/1/09 ought to have been signed by the plaintiffs in that suit (now respondent) or a legal practitioner on their behalf. Having been not so signed, the writ of summons was incompetent and by extension it was not properly issued by the registrar of the Court below. This defect affected adversely the jurisdictional competence of the lower Court to entertain the respondent’s suit”.
The respondent on the issue seems to hang his argument on the issue pointing out that failure to adhere strictly with the rules of Court is not enough to vitiate or to deny a party the right to ventilate his grievance. I agree with him. I said so in the case of Colito Nigeria Ltd & Anor vs. Honourable Justice Titi Daibu (2018) LPELR – 44300 (CA). my reason for agreeing with the principle is that rules of Court are in place to regulate practice in Court and do not by itself confer jurisdiction. See Odom vs. PDP per Dattijo JSC, Idegwu vs. The State (2015) 6 NWLR (pt. 1455) 236, Uwazurike vs. AG Federation (2007) 8 NWLR (pt. 1035) 1. In other words, were the facts of the instant case, to be on all fours with the cases just cited, I

would have with humility departed from the decision of my learned brothers in the case of Igiriga vs. Bassey (supra). In other words, irregularities cannot defeat the course of justice as argued. This however is not the case in the matter before the Court.
The departing point is that the writ was not signed at all, and in matters of signature in an originating process, there cannot be compromise or departure thereto. See Idegwu vs. The State (supra) @ page 286.
The appellant is therefore on a strong wicket urging this Court to hold that the writ of summons, not having been signed by the claimant (respondent) rendered the same incompetent, and thereby robbed the lower Court and by extension this Court the jurisdiction to entertain the case: Multichoice Nigeria Ltd vs. Hon. Jerry Akpan (2014) LPELR – 22681 (CA), PDP vs. Ekeagbara & Ors (2016) LPELR – 40849 (CA), where an originating process initiating a suit is found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it, for an invalid process cannot initiate a suit in a Court of law. See also Ogunmola vs. Kida (2006) ALL FWLR (pt. 327) 402 @ 412. The

failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. The consequence is that this Court can rightly invoke the provisions of Section 15 of the Court of Appeal Act 2004, and thereby strike out the suit filed below for being incompetent.
The import of the two decisions of this Court cited above crystallized to the fact that an unsigned writ of summons is not an irregularity as contended, but goes to the root of the process that seeks to originate the action. The learned counsel for the respondent tried to wriggle himself out of the situation in which he found himself, unfortunately, I cannot see him succeeding. The issue at hand is that the writ originating the action before the trial Court was not signed, and in the eyes of the law, a worthless paper. The two decisions cited before now, eloquently answered all arguments postulated by the respondent, and I wholly adopt same in the resolution of this appeal. The resultant effect is that the unsigned writ is incompetent, and the lower Court robbed of the jurisdiction to

try the suit before it. In other words, the purported trial and decision arrived at by the Court below is a nullity and all orders made therein null and void.
I thereby adopt my reasoning in the two cases cited, and hold that the unsigned writ of summons in the case before the Court, rendered the originating process incompetent, and thereby robbed the lower Court and this Court the jurisdiction of entertaining the action. This appeal succeeds on the first leg of the sole issue.
With respect to the second leg of the learned senior counsel’s submission which turned on the interpretation of Order 8 Rule 2, and the question whether the failure of the registrar to seal the writ ousted the jurisdiction of the Court to entertain the suit filed. This Court fortunately interpreted that same provision in the recent decision of this Court, in the unreported case ofMr. Oscar Ofuka vs. Lazarus Izabi-Undie Esq, in appeal with No. CA/C/165/2014, delivered by this Court on the 15/5/2020. Therein, this Court held that:
“Let me by way of passing briefly comment on the requirement by the Court registrar sealing a writ of summons as demanded by

Order 8 Rules 1, 2(1) and (3) of the High Court of Cross River State (Civil Procedure) Rules 2008, which I had earlier reproduced before now. Learned counsel for the appellant heavily leaned on the authority of Igiriga vs. Bassey (supra) to argue that the non- sealing by the registrar of Court robbed the Court of jurisdiction to entertain the action. I had occasion to study the case under reference, and the opinion of my learned brothers on the issue. The case of State Independent Electoral Commission Ekiti State vs. National Conscience Party (2008) LPELR – 4980 (CA) per Sankey JCA was drawn to my attention. I also considered the decision of Tsammani JCA in Ajayi vs. Oguntowo (2018) ALL FWLR (pt. 953) 197 @ 218, and relied on the authority of the Apex Court in the case of Saleh vs. Monguno (2006) 7SCNJ 236, thereby agreeing with the statement of the law, that rules of Court and all its technical rules ought to be but a handmaid of justice and legal inflexibility may if strictly followed only serve to render justice grotesque or even lead to outright injustice, which the Courts would not endure. In other words, rules of Court are made to aid the course of

justice, and therefore the interest of justice must be given paramountcy over and above rules of Court when undue compliance with the rules would lead to outright injustice. Thus the decision of SIEC Ekiti State vs. The National Conscience Party (supra) in my humble view is more in tune with the extant position of the law. See Oyekunle Power Stephen Gbenga vs. APC & Ors (unreported) Appeal No. CA/IL/78/19, delivered on the 2nd July, 2019, per Barka JCA. I have however tried to distinguish the present position and made it clear that the writ of summons, which the respondent failed to sign, is fundamental, and rendered the writ incompetent. This is different from the act of sealing the same writ where signed by a known person or his counsel”.
I also adopt my reasoning in the case under reference, and hold that the non sealing of an originating process is an irregularity which does not oust the jurisdiction of the Court to entertain the action. In any case, why should a lousy registry, whether by omission or commission deny a litigant who having fulfilled all that is required of him access to justice.
However, inspite of the holding with

respect to this second arm of the issue, to the effect that the non sealing of a writ of summons by the registrar of Court does not affect the jurisdiction of the Court to entertain the suit before it, having come to the conclusion that the writ of summons which originated the case before the lower Court was incompetent having not been signed by the litigant and or his legal practitioner, the entire proceedings of the lower Court including all orders made thereto amounted to a nullity and of no moment, and the writ being defective, this Court has the power by virtue of Section 15 of the Court of Appeal Act, 2004 to strike out the same, which I now do.

This appeal succeeds and it is hereby allowed. The decision of Isoni J, of the Cross River State High Court delivered on the 23rd of December, 2013, being a nullity is hereby set aside, and the writ founding the suit before the Court struck out.
I make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. I totally agree with the reasoning and conclusion of my learned brother in

determining the critical issue in this appeal – to wit “whether the learned trial judge was right when he assumed jurisdiction to entertain an incompetent suit that was not initiated by due process of law.” That failure to sign a writ of summons as required by law fundamentally affects the validity of a claimants suit, as it calls the competence of the suit and the jurisdiction of the Court in question.
The law is well settled that an originating process, such as a writ of summons, must be signed by the litigating party or legal practitioner on his behalf. In the instant case, the writ of summons which was not signed by the Respondent and/or his counsel acting on his behalf robbed the Court below of the necessary jurisdiction to entertain the case This is because an un-signed originating process as the writ of summons in the instant case renders the process invalid and the jurisdiction of the Court is ousted.
Meanwhile, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.

For these reasons and the fuller

reasons contained in the lead judgment of my learned brother, I also allow the appeal. I abide with the consequential order(s) and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was afforded the opportunity of reading in draft, the Judgment just delivered by my learned brother; Hamma A. Barka, JCA and I agree with the resolution of the issue distilled for determination by the parties.

The validity of any originating process known to law must comply with the law. Its validity in any proceeding must be settled as it is a fundamental issue and requirement, to make the process alive or indeed make it a life issue. It is a sine qua non. Thus, failure to properly sign an originating process or any process of Court for that matter in the proper way makes the suit liable to be set aside as being incompetent thereby rendering the proceedings predicated on it null and void. See KIDA V. OGUNMOLA (2006) ALL FWLR (prt 327) 402.
I am also of the firm view that the non-signing of the originating process by the litigant and or his legal practitioner in the instant case rendered the entire proceedings of the lower Court a nullity. I too allow the appeal and

set aside the suit that gave birth to this appeal.

Appearances:

Mba E. Ukweni (SAN), with him, E. O. Abba Esq. For Appellant(s)

I. Ojong Esq. For Respondent(s)