DIAMOND BANK PLC v. TRANTER INTERNATIONAL LIMITED & ANOR
(2019)LCN/13900(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/L/731/2017
RATIO
PRACTICE AND PROCEDURE: WRIT OF SUMMONS: DUTY TO SIGN THE ORIGINATING PROCESS
The welter of opinions on this issue as repeatedly pronounced upon by this Court and the Apex Court is that an originating process, such a Writ of Summons, which by law must be signed either by the party or his counsel if not signed before it was issued is incompetent. This principle of law has become trite and so well settled and thus no longer poses any difficulty to the Courts. See Joshua Bernard Fumudoh & Anor. V. Dominic Edi Aboro & Anor. (1991) 9 NWLR (Pt. 214) 210 @ p. 229. See also United Bank for Africa V. Barrister Eyo Nsa Ekpo (2003) 12 NWLR (Pt. 834)1; Mohammed Marl Kida V. A. 0. Ogunmola (2006) 6 SC 147 @ pp. 152 – 153. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
PRACTICE AND PROCEDURE: THE EFFECT OF AN ORIGINATING PROCESS THAT IS NOT PROPERLY SIGNED
The law as it stands today, unless and until it is overturned by the apex Court, is that any Court process for that matter, not just originating processes only, not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. Thus, it is no longer only when a Court process is signed in the name of a law firm that it is incompetent, it is also incompetent when it is signed by no verifiable person or not signed at all. See GTB Plc v. Innoson Nigeria Limited (Supra). See also SLB Construction V. NNPC (2011) 9 NWLR (Pt.1252) 317 @ pp. 336 -337. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
WRIT OF SUMMONS: THE PROPER WAY BY WHICH A LEGAL PRACTITIONER SHOULD SIGN A WRIT OF SUMMONS
In GTB Plc V. Innoson Nigeria Limited (2017) 6 NWLR (Pt. 1594) 186, the Apex Court, per Eko JSC., had held inter alia thus:
A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his…..The process must have the signature or mark of the legal practitioner either against his name, or over and above his name. The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out.?
See also SLB Construction V. NNPC (2011) 9 NWLR (Pt.1252) 317 at pp. 336 -337. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
PRACTICE AND PROCEDURE: WHAT HAPPENS WHEN AN ACTION IS FOUND TO BE INCOMPETENT
My lords, in law once an action or matter or cause is found to be incompetent, that indeed should be the end of the matter, since one cannot put something on nothing and expect it to stand for nullity upon nullity would still amount to nullity and nothing more! See Macfoy V. UAC Ltd. (1962) 1 AC 100 @p. 160. See also Babatope & Ors V. Sadiku & Anor (2017) LPELR – 41966 (CA) per Georgewill, JCA @ pp. 10 – 14.
In other words, an incompetent suit or action or matter or cause initiated by an incompetent originating process, such as a Writ of Summons, is not one over which neither the Court below nor this Court would have the jurisdiction to determine any other issue on the merit and the proper order to make is one setting aside the perverse ruling of the Court below based on the incompetent Writ of Summons and to strike out the Respondents? suit for being incompetent. SeeMusical Copyright Society of Nig Ltd. V. NCC (2016) LPELR – 41009(CA) per Georgewill, JCA @ pp. 29 ? 30. See also Umaru V. Yahaya (2015) LPELR – 26043(CA) per Georgewill, JCA @ pp. 15 ? 16; Madukolu V. Nkemdilim (Supra) @ p. 581. See also Okarika V. Samuel (2005)7 NWLR (Pt. 924) 36; Shelim V. Gobang (2009) Vol. 173 LRCN 36 @ p. 42. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
DIAMOND BANK PLC Appellant(s)
AND
1. TRANTER INTERNATIONAL LIMITED
2. MR. EMMANUEL OLANREWAJU AYOOLA Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division Coram: J. K. Dagat J. in Suit No. FHC/L/CS/143/2006: Tranter International Limited & Anor., V. Diamond Bank Plc., delivered on 13/6/2016, wherein the application by the Appellant as Defendant seeking the striking out of the Respondents? suit for being incompetent was dismissed.
?The Appellant was dissatisfied with the said Ruling and had promptly appealed against it to this Court vide its Notice of Appeal filed on 24/6/2016 on three grounds of appeal at pages 243 – 248 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 7/6/2017 but was deemed properly transmitted on 25/5/2018. An additional Record of Appeal was subsequently transmitted by the Appellant to this Court on 7/9/2018, while the Respondent also transmitted an additional Record of Appeal to this Court on 23/7/2018. Both additional Records of Appeal were deemed as properly transmitted on 20/9/2018. The Appellant?s brief was filed on 6/6/2018. The Respondent?s brief was filed on 23/7/2018. The Appellant?s list of additional authorities was filed on 26/10/2018.
At the hearing of this appeal on 2/5/2019, Udochi Iheanacho Esq., learned counsel for the Appellant, appearing with Akuelo Nnaji Esq., adopted the Appellant?s brief as their arguments in support of the appeal and urged the Court to allow the appeal and strike out the Respondent?s suit for being incompetent. On their part, Benjamin Obiora Esq., learned counsel for the Respondent, appearing with C. I. Balonwu Esq., adopted the Respondent?s brief as their arguments in opposition to the appeal and urged the Court to dismiss the appeal and to affirm the ruling of the Court below.
By a Writ of Summons filed on 16/2/2006, and amended on 20/7/2007 and further amended on 28/11/2011, the Respondents as Plaintiffs claimed against the Appellant as Defendant, the following reliefs, namely:
1. The sum of N176, 406, 301.73 being Defendants? outstanding and unpaid debt to the Plaintiffs as at 31st July, 2005.
2. INTEREST on the outstanding debt sum of N176, 406, 301.73 at the rate of 21% per annum from August 01, 2005 until judgment and thereafter at the rate of 11% per annum until the whole judgment debt and cost is liquidated.
3. IMMEDIATE release of the sum of N15, 000, 000.00 by the Defendant to the 1st Plaintiff for onward remittance to the Federal Inland Revenue Service (FIRS) being money meant for Value Added Tax (VAT) and knowingly withheld by the Defendant.
4. The sum of USD 5,737.55 and USD 88,000.00 being payments made to the 1st Plaintiff through the Defendant by Shell Petroleum Development Company of Nigeria Limited, which said monies were not accounted for by the Defendant.
5. INTEREST on the said sums in 4 above at the rate of 21% per annum from December 01, 2001 until judgment and thereafter at the rate of 11% per annum until the whole judgment debt is liquidated.
6. IMMEDIATE release to the Plaintiffs of the sum of USD 24,84.27 (US Dollars) and the sum of GBP 16,092.88 (Pounds Sterling) illegally withheld and seized by the Defendant in the 1st Plaintiffs Domiciliary Accounts Number 0051520000169 and 0051530000075 respectively.
7. INTEREST on the said sum in 6 above at the rate of 21% per annum from 4th January, 2005 until judgment and thereafter at the rate of 11% per annum until the whole judgment debt is liquidated.
8. GENERAL DAMAGES for the financial and psychological trauma which the Plaintiffs were through put through.
9. Cost of this suit.
See pages 1 – 2 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Defendant before the Court below, in this interlocutory appeal is that the Respondents, as Plaintiffs before the Court below, had commenced an action by means of a Writ of Summons dated 20/7/2006, which Writ of Summons was discovered to have been signed by a Law Firm and not by a Legal Practitioner as required by law. As a result of this discovery, the Appellant filed a Motion on Notice on 7/5/2015 seeking amongst other reliefs an order striking out the Respondents? Writ of Summons filed on 16/2/2006 and all the amended Writ of Summons for being incompetent and void. The Appellant?s Motion was eventually heard on 12/2/2016 and dismissed by the Court below on 13/6/2016, hence the appeal against the said ruling by the Appellant to this Court. See pages 1 – 11, 58 – 85, 122 – 179, 180 – 206 and 243 – 248 of the Record of Appeal. See also pages 1 – 6 of the Appellants Additional Record of Appeal.
On the other hand, the gist of the case of the Respondents, as Plaintiffs before the Court below, in this interlocutory appeal is that the Respondents commenced the suit by the Writ of Summons properly issued in accordance with the provisions of the Federal High Court (Civil Procedure) Rules, 2000 which was the existing rules of the Court at the time, which by Order 6 Rule 1 thereof, required the Plaintiffs counsel to make an application to the Registrar who had the responsibility to issue the Writ of Summons and there was no provision in the then Rules of Court requiring the signature of the Counsel or the Plaintiffs in the Writ of Summons to make the Writ valid, but rather it was the Registrar who issued the writ that signed as provided by the Rules of the Court.
After the Respondents formally changed their counsel that commenced the suit, the Appellant?s counsel under a strange circumstance filed a motion on notice on 7/5/2015 asking the Court to, among other things, strike out the Writ of Summon and the Statement of Claim. The parties filed and exchanged affidavit and counter affidavits and the motion was heard and dismissed by the Court below on 13/6/2016. Thereafter, the trial continued with the evidence of PW1. However, the Appellant filed a Notice of Appeal and suppressed same without bringing it to the notice of the Court below and the Respondents were also not served until after nine months of filing same. The matter has since commenced de novo before another judge of the Court below and the Respondents have pending before the Court below a Motion on Notice seeking to further amend their Statement of Claim, which would state the Reliefs unequivocally as a paragraph of the Statement of Claim.
The substantive claim of the Respondents as could be gleamed from their pleadings is for the Appellant to account for the various acts of fraud, conversion, breach of trust and fiduciary duties in respect of the banker- customer relationship, which placed the duty and obligation on the Appellant to account for and return the various sums of money in several denominations, including Naira, United States Dollars and British Pound sterling, to the Respondents and general damages. The Appellant only filed its
Statement of Defense on 12/2/2008 and save for the incidence of commencing the suit de novo because of the constant transfer of the trial judges presiding over the matter, the Appellant has variously by deliberate acts of indulgences occasioned delays in the trial proceedings and the suit is now 12 years before Court below, while the Motion filed by the Appellant before the Court below to strike out the Respondents? suit were all simply based on complaints bordering on issues of procedures and irregularities and was dismissed for lacking in merit. See pages 1 – 11, 58 – 85, 122 – 179, 180 – 206 and 243 – 248 of the Record of Appeal. See also pages 254 – 314 of the Additional Record of Appeal complied by the Respondents.
ISSUES FOR DETERMINATION
In the Appellant?s brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether the originating process filed in this suit, being the Writ of Summons dated 15/2/2006 could be said to be capable of vesting jurisdiction in the Court below to proceed or continue with the hearing of the case and whether the Court below was not wrong when it held that the signature of the Law Firm of Ikenna Onwusika & Co that appeared on the Writ was superfluous and did not invalidate the Writ? (Distilled from Ground 1)
2. Is the Respondent?s Amended Statement of Claim in this suit competent having claimed only ?as per writ of summons? despite the mandatory provisions of the Federal High Court Civil Procedure Rules 2000 and 2009 and the 2012 decision of the Supreme Court in Stowe V Ben Stowe (2012) 9 NWLR (Pt 1306) 436? (Distilled from Ground 2).
3. Whether or not the insertion of paragraph 39b in the Respondent?s Amended Statement of Claim dated 20/7/2007 containing claims that were appa
