ERNEST & ANOR v. DAVID (2021)

ERNEST & ANOR v. DAVID

(2021)LCN/15021(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/457/2014

RATIO

PROCEDURE: WHO CAN SIGN THE WRIT OF SUMMONS AS AN ORIGINATING PROCESS UNDER TH HIGH COURT CIVIL PROCEDURE RULES 2009 OF AKWA IBOM STATE

A careful and holistic reading of the provisions of the High Court Civil Procedure Rules 2009 of Akwa Ibom State shows that it is only the Registrar who is given the opportunity to sign the writ of summons as an originating process while the writ could be presented by a Legal Practitioner or the claimant himself. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WORDS AND PHRASES: DEFINITION OF ORIGINATING PROCESS

First, in the definition section of the Rules, more specifically Order 1 Rule (2) there is no definition of Writ of Summons or anywhere where Writ of summons is mentioned or defined as “originating process”. Rather, “originating process” under the 2009 Rules means “any Court process by which a suit is initiated”. PER MOJEED ADEKUNLE OWOADE, J.C.A.
RULES: WHAT ACCOMPANIES CIVIL PROCEEDINGS COMMENCED BY WRIT OF SUMMONS

Order 3 Rule 2 says:
2 – (1) All civil proceedings commenced by writ of summons shall be accompanied by:
a. Statement of Claim.
b. List of witnesses to be called at trial.
c. Written statement on oath of the witnesses and
d. Copies of every document to be relied on at the trial.
(2) Where a Claimant fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.
(3) Except in the cases in which different forms are provided in these Rules, the Writ of Summons shall be in Form 1 with such modifications or variations as circumstances may require.
I will pause here to consider the implications of holistic reading of Order 3 Rules 1, 2 and 3 together with the definition of originating process in Order 1 Rule 2 of the said Rules of Court.
1. Originating process includes Writ of Summons and Statement of Claim.
2. The processes are expected to be filed simultaneously.
3. The format of the Writ of Summons is as provided in Form 1 attached to the Rules. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. MRS. CHRISTIANA ERNEST 2. MR. ERNEST BASSEY EDON APPELANT(S)

And

MRS. EMEM EKANEM DAVID RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ikpe J. sitting at the High Court of Akwa Ibom State sitting at Eket in Suit No. HEK/21/2010.

The suit, at the trial was commenced by a Writ of Summons filed on 1/4/2010 after leave of the trial Court was obtained to issue the writ and have it marked under the Undefended List.

The Defendants Appellants filed a Notice of Intention to defend which culminated in the suit being transferred to the general cause list for determination on merit. Consequently, pleadings were filed and exchanged and the parties called evidence and tendered documents in trial.

The Appellants allegedly borrowed various amounts of money from the Respondent and thus became indebted to the Respondent in the sum of N1,055,000.00 (One Million, Fifty-Five Thousand Naira).

The Appellants denied ever being indebted to the Respondent and contended that the Appellants only acted and/or signed as witnesses to the borrowers in respect of the various loan transactions made by the Respondent on behalf of the Market Women Association to which

the 1st Appellant and the Respondent belong.

At the conclusion of the trial, the learned trial judge found for the Respondent/Plaintiff on the total accumulated debt claimed being the sum of N1,025,000.00 with 10% interest until the debt is fully paid by the Appellants.

The learned trial judge in coming to this conclusion held severally, first at page 116 of records that:
In my view, where a party having this clear awareness, inadvertently or deliberately chooses to sign the contract away from the doted lines designated for him as a party, he cannot avoid the contract based on that reason alone, unless there are other fundamental reasons to vitiate the contract, for instance there exist the signature of another person on the document purporting to be the signature of the proper party or borrower as the case may be. In this case, it needed only two signatures to complete the contract and those two signatures which complete the documents are conspicuously there. I reject the defendant’s intelligent escapist excuse that they signed as only witnesses to some anonymous borrowers. I agree with the plaintiff that the defendants entered the

contract in full awareness of their capacity as described in the documents but they chose to sign where and how they did.
I am prepared to hold and I do hold that in the present circumstance, rather than allow the defendants to take benefit of their own wrong, the signature of the defendant, at the spot found would be deemed to serve either or both of the following purposes:
a. It may be taken that the party signing intended the signature to be a witness unto herself and
b. It may also operate both as an endorsement to the contract as well as a witness by self-recognizance.
Whichever way this issue is resolved in favour of the plaintiff and against the defendants in respect of Exhibits 1, 2, 3, 4, 5, and 6.

Secondly, at pages 117-118, that:
In respect of the Exhibit 7, which relate to the agreement signed by the 1st defendant as guarantor to the DW1, I have looked at the Exhibit 7. It is an agreement under seal. The mere existence of a debt or default or miscarriage of another person, is not sufficient to support a guarantee agreement to a creditor, which must in all cases be founded upon a new consideration, unless such agreement

is under seal – see BARCLAYS BANK OF NIG. v. OKOTIE EBOH (1972) NCLR Page 174.
In this case, the contention by the 1st defendant is that the DW1 had fully discharged the obligation under the contract. The onus was on the 1st defendant to prove that. She called the said Grace Ime Oduok as DW1.
I have examined closely the statement on oath of this witness and particularly the paragraphs 1(i) (ii) (iii) thereof. I note in line with the reservation expressed by the plaintiff’s counsel that, whereas it was convenient and necessary for the DW1 to obtain a receipt for the sum of N30,000.00, which she paid as alleged last instalment, the first two instalments which involved bigger sums i.e N170,000.00 and N160,000.00 did not receive the benefit of wise counsel. She had no receipts. Not that debt repayment cannot be proved otherwise then (sic) than by tendering of receipts, it is just that when one who has the burden of prove asserts and the other controverts or denies, the person who has the duty of adducing further evidence in that circumstance would fail if no further evidence is produced. See Section 133 (1) of the Evidence Act 2011.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Surprisingly in respect of the payment of the N170,000.00 and N160,000.00 as alleged respectively, no date of the purported repayment was stated, whereas the 1st defendant could well recall the date of payment of the N30,000.00.
In the circumstance, it leads me to hold and I do hold that the 1st defendant or defendants did not discharge that burden on them, except to prove by Exhibit 8 that N30,000.00 out the total sum of N360,000.00 has been paid over to the plaintiff.
For the avoidance of doubt, let me use this opportunity to treat that subject which the defence counsel rather casually but with potential significance introduced into the fray. Chief Akpa had repeatedly asked the plaintiff where she derived her authority to prosecute the defendants, seeing that the agreements declared that it was the Market Women Association, Eket, that were the owners of the money.
For the avoidance of further doubt, I have noted that the power to sue is self-generated in the agreement itself. The opening statement of the agreements described the lender as “being the executive member who has been empowered so to do” by the association.

Thirdly still at page 118 of the records that:
At this point, let me summarise the findings of this Court on the issues deliberated so far. It is that, in respect of the Exhibits 1-6 which amount to a total of N695,000.00 accumulatively, I have found that there was a contract between the plaintiff and the defendant. The defendant had defaulted in the repayment of these said sums on the various contract agreements to the plaintiff. The defendants are liable to the plaintiff and the plaintiff is entitled to enforce the repayment according to the terms of the agreement.
What was the term of enforcement of the agreement in Exhibits 1-6. The answer is to be found in the respective Clause 6 thereof of the six documents. That clause shows that the defendants agreed to mortgage either their car or house or landed property as security for the respective loan agreement. While it is herewith adjudged that the plaintiff is entitled to recover the sums stated in the Exhibits 1-6, the plaintiff must first have recourse to the security or mortgage property as agreed before proceeding by any other means, unless the plaintiff can show that such collateral or securities are

unavailable or it is impracticable to deal with the same or they are insufficient to satisfy the judgment debt wholly.
In respect of the debt owed on Exhibit 7, no security was provided and therefore the 1st defendant is deemed to have entered into the transaction personally without any qualification. The plaintiff is therefore entitled to recover the sum of N360,000.00 less the N30,000.00 which the defendants proved to have paid.

And finally and in conclusion at pages 118-119 of the records, the learned trial judge held that:
In the result, it is hereby held that the case of the plaintiff succeeds and the plaintiff is entitled to recover from the defendants jointly and severally a total sum of N695,000.00 on the loan transactions evidenced in Exhibits 1, 2, 3, 4, 5, and 6 in this proceeding, subject to the terms of recovery of the sums, as stipulated in the agreements and upheld by this Court.
2. The plaintiff is also entitled to recover forthwith from the defendants the sum of N330,000.00 being debt owed the plaintiff by the defendant on a loan transaction which the defendant failed to pay under the agreement with the plaintiff as

evidenced in the Exhibit 7 in the proceeding now determined by this Court.
3. Interest is fixed at the rate of 10% per annum on the accumulated debt being the sum of N1,025,000.00 until the full amount is liquidated.
Cost of this action is fixed at N30,000.00 and payable by the defendants to the plaintiff.

Dissatisfied with the judgment, the Appellant at first filed a Notice of Appeal and later filed Amended Notice of Appeal containing three (3) grounds of appeal on 6/4/2017. Appellant’s brief of argument was filed on 6/4/2017 but it was deemed filed on 11/1/2021. It is settled by Chidi R. Anyanwu, Esq.
Respondent’s brief of Argument was filed on 30/10/2017 but was also deemed filed on 11/1/2021. It is settled by Livinus Udofia, Esq.

THE PRELIMINARY OBJECTION
The main plank of the Respondent’s preliminary objection is that there was no order extending time within which the record of appeal filed by the Appellant was deemed properly filed.

However, perhaps unknown to the learned counsel for the Respondent, this honourable Court granted the Appellant’s motion on notice of 12/6/2018 for the

regularisation of the Appellant’s record of appeal and thereby deemed the Appellant’s record of appeal that was filed on 7/11/2014 to be so properly filed on 18/10/2018.
The Respondent’s preliminary objection lacks merit and it is accordingly overruled.

THE MAIN APPEAL
Learned counsel for the Appellant nominated three (3) issues for the determination of the appeal, they are:
1. Whether the failure of the Plaintiff/Respondent’s counsel to sign and stamp the Originating Process (Writ of summons) in suit No. HEK/UND.21/2010 did not render the suit incompetent and thus robbed the trial Court of the requisite jurisdiction to hear and/determine the suit.
2. Whether the trial Court erred in law by holding that the Defendants/Appellants are indebted to the Plaintiff/Respondent in the sum of N1,025.000.00 or at all.
3. Whether the judgment of the trial Court is against the weight of evidence.

Learned counsel for the Respondent nominated only two (2) issues for determination of appeal. They are:
i. Whether the non-signing of the Writ of summons alone by plaintiff or her counsel is fatal to the competence of

the entire suit?
ii. Whether the Plaintiff/Respondent has proven that the Defendants are indebted to her for the sum claimed?

On Issue No. 1, learned counsel for the Appellant alleged the failure of the Respondent to sign writ of summons. He submitted that the writ of summons was fundamentally defective for non-compliance with the Akwa Ibom State High Court (Civil Procedure) Rules 2009.

He referred particularly to the provision of Order 6 Rule 1 and Order 6 Rule 2 (3) of the Akwa Ibom State High Court Rules and argued that originating process – Writ of Summons must be signed by Legal Practitioner. That non-compliance renders the Respondent’s suit incompetent.

He referred amongst other cases to MADUKOLU v. NKEMDILIM (1962) ALL NLR 587; OWENA BANK PLC v. OLATUNJI (2002) FWLR (Pt. 124) 529 @ 572-594; MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE v. ALHAJI ISIYAKU YAKUBU (2013) ALL FWLR (Pt. 694) 23 @ 27.

On Issue No. 1, learned counsel for the Respondent submitted that under the 2009 Rules of the High Court of the Akwa Ibom State as it was under Order 5 of the 1989 Rules of the said Akwa Ibom State, there is no

requirement for the party or his counsel to sign a writ of summons.

He submitted that under the 2009 Rules, a host of documents constitute the originating process. That it is no longer fashionable to say writ of summons but the originating processes which comprise the Writ, Statement of Claim, List of documents to be relied on at the trial and list of witnesses to be called at the trial.

He supported his argument with the case of BAYERO v. MAINASARA (2007) ALL FWLR (Pt. 359) 1285 where in similar circumstance, the Court held that “A writ of summons is issued upon it being signed by the registrar or other officer of the Court duly authorized to sign the writ”.

He concluded that the non-signing of the writ by the counsel or party is not fatal because the officer of Court (Registrar) who is authorized to sign the writ of summons has so signed.

the claimant himself.
However, in the instant case, the Appellant’s counsel appended his signature to the Statement of Claim which in fact is the only originating process between the two; that is Writ of Summons and Statement of Claim of which he could append his signature.
Our enquiry in this terrain requires a total appreciation of the provisions of the 2009 High Court Civil Procedure Rules of Akwa Ibom State.
First, in the definition section of the Rules, more specifically Order 1 Rule (2) there is no definition of Writ of Summons or anywhere where Writ of summons is mentioned or defined as “originating process”. Rather, “originating process” under the 2009 Rules means “any Court process by which a suit is initiated”.
Order 3 Rule 2 says:
2 – (1) All civil proceedings commenced by writ of summons shall be accompanied by:
a. Statement of Claim.
b. List of witnesses to be called at trial.
c. Written statement on oath of the witnesses and
d. Copies of every document to be relied on at the trial.
(2) Where a Claimant fails to comply with Rule 2 (1) above, his

originating process shall not be accepted for filing by the Registry.
(3) Except in the cases in which different forms are provided in these Rules, the Writ of Summons shall be in Form 1 with such modifications or variations as circumstances may require.
I will pause here to consider the implications of holistic reading of Order 3 Rules 1, 2 and 3 together with the definition of originating process in Order 1 Rule 2 of the said Rules of Court.
1. Originating process includes Writ of Summons and Statement of Claim.
2. The processes are expected to be filed simultaneously.
3. The format of the Writ of Summons is as provided in Form 1 attached to the Rules.
In the instant case, the Appellant’s counsel indorsed his name in the Writ of Summons in presenting same to the Registrar who indeed issued the writ of summons.
The signature of the Appellant is imprinted in the Statement of Claim as there is no provision, no space, no requirement of the signature of the Appellant’s counsel on the writ of summons.
The Appellant’s counsel in this case fully complied with the requirement for the issuance of Writ of

Summons as stated in Form 1 which does not require his signature on the writ of summons.
It is the combination of the two documents that practically qualifies as originating process under the 2009 Akwa Ibom State High Court Civil Procedure Rules.
Now, the following provisions are found in Order 6 of the Akwa Ibom State High Court Civil Procedure Rules, 2009.
6 (1) Originating process shall be prepared by a Plaintiff or Claimant or his Legal Practitioner and shall be clearly printed on good quality white opaque paper.
2 (1) The Registrar shall sign and stamp every originating process whereupon it shall be deemed to be issued.
(2) A Plaintiff or Claimant or his Legal Practitioner shall on presenting any originating process for signing and stamping, 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 and stamped by the Legal Practitioner or by the plaintiff or claimant where he sues in person, and shall be certified after verification by the Registrar as being a true copy of the original process filed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Registrar shall after signing and stamping an originating process file it and note on it the date of filing and the number of copies supplied by a plaintiff or claimant or his Legal Practitioner for service on the Defendants.
The Registrar shall then make an entry of the filing in the Cause Book and identify the action with a suit number that may comprise abbreviation of the Judicial Division, a chronological number and the year of filing.
4. The Registrar shall promptly arrange for personal service on each defendant a copy of the originating process and accompanying documents duly certified as provided by Rule 2 (3) of this Order.
It would be recalled that the learned counsel for the Respondent held on to the provision of Order 6 Rule 2 (3) for his insistence that the Appellant’s counsel failed to sign the Writ of Summons in the instant case. By that argument, Respondent’s counsel did not realise that there is nowhere in the Rules where the Legal Practitioner or Claimant is required to sign the writ of summons. Rather, the rules makes reference to “originating process” which synonymously or interchangeably

refers to Writ of Summons or Statement of Claim. Better still, and in conformity with the provision of Order 2 Rules 2 and 3, a combination of the two processes that is the Writ of Summons and the Statement of Claim.
Put shortly, the Legal Practitioner under the aforesaid Rules is supposed to sign the originating process which includes the Statement of Claim but not particularly the writ of summons. The requirement of signing the Writ of Summons by Form 1 under the aforesaid Rules belongs to the Registrar and not for the Legal Practitioner or the Claimant.
This Court has severally held that the requirement of signature of writ of summons cannot be imposed on Legal Practitioners or Claimants where as in the instant case, it is only the Registrar that is required to sign such a writ of summons. See S.P.D.C LTD. v. GBENEYEI & ORS. (2019) 13 NWLR (Pt. 1689) 272 @ 293 per Awotoye JCA; BAYERO v. MAINASARA (2006) 8 NWLR (Pt. 982) 391 C.A; UDOH v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (Pt. 304) 139 SC.
The originating process in this case was duly presented to the Registrar by the endorsement of the Appellant’s counsel’s

name. The Registrar duly signed the Writ of Summons as originating process by virtue of Order 6 Rule 2 (1) and the Appellant’s counsel duly signed the Statement of Claim as originating process by virtue of Order 6 Rule 2 (3).
Learned counsel for the Respondent cannot claim that the originating process in this case was not signed. The Writ of Summons was prepared in conformity with Form 1 of the Rules, duly signed as required by the Registrar of Court while the Appellant’s counsel signed the statement of claim.
In the instant case, I agree with the learned counsel for the Respondent that there is no requirement of party or counsel to sign Writ of Summons under the 2009 Akwa Ibom State High Court (Civil Procedure) Rules.
Learned counsel for the Respondent noted rightly that a host of documents including Writ of Summons and Statement of Claim are regarded as originating process under the 2009 Akwa Ibom State Rules. By Form 1 attached to the Rules, the only requirement for signing of the writ is for the Registrar. The obligation of the party or counsel in relation to the writ of summons is for endorsement.

The counsel to the Respondent having indorsed the writ of summons and signed the Statement of Claim has fully complied with the requirement of signing of originating process under the 2009 Rules of the Akwa Ibom State High Court.
Issue No. 1 is resolved against the Appellant.

Two points were made by the learned counsel for the Appellants in his Issue No. 2 and 3. The first is that the Appellants merely signed/executed the loan agreements as witness to the transactions and not as borrowers, except Exhibit 7 wherein the 1st Appellant signed as a guarantor to a third party (Mrs. Grace Ime Oduok). That the trial Court was therefore wrong when it held that the Appellants borrowed money and thus indebted to the Respondent.

The second point made by Appellants in Issues No. 2 and 3 is that the said Exhibit reveal that the lender therein is the Market Women Association but the Respondent/Plaintiff instituted the suit in her personal name without any authority from the Association.

Learned counsel for the Respondent in reacting to Appellants Issues No. 2 and 3 submitted that the totality of the sum claimed as unpaid debt was/is supported by documentary evidence which

were all tendered before the Court and marked as Exhibits without objection. That the 1st Appellant Defendant made some efforts to evade the responsibility to repay the loan on the basis that she signed the Exhibits at the column of the witness but could not change her name as a party (borrower) in the loan agreements.

He submitted further that DW2 said she witnessed the documents for other persons who borrowed but that under cross-examination, she could not mention the names.

Also, that the attention of DW2 was drawn to the fact that she was named as borrower in the agreements and that she signed the Exhibits in that capacity.

Learned counsel for the Respondent submitted that DW1 admitted obtaining a loan from the Respondent and that DW2 guaranteed the loan for her. He referred to the cases of SAWALAL MOTOR HOUSE LTD. v. LAWAL (2000) FWLR (Pt. 3) 517; AFRICA DEVELOPMENT INSURANCE COMPANY LTD. v. NIGERIA LIQUIFIED NATURAL GAS LTD. (2000) FWLR (Pt. 3) 431 and submitted that it was open to the Respondent/Plaintiff to proceed against the guarantor upon the default of DW1 to pay the loan guaranteed by DW2.

The two points raised by the learned

counsel for the Appellants were reflected on and adequately decided upon in the judgment of the learned trial judge.

The first is that in each of the agreements – exhibits, the names of the borrower were inserted, the learned trial judge was thus right to have held that the Appellants cannot escape liabilities for the debts owed merely because they appended their signature on the columns meant for witnesses to sign.

I totally agree with the learned trial judge. Equity frowns at fraud and the Appellants could in fact not use such technicalities to avoid their indebtedness to the Respondent.

Secondly, it is clear from the agreements, the exhibits that the Market Women Association has donated the authority to sue to the Respondent, this fact was repeated and affirmed in the evidence of the Respondent as PW1. In the circumstance, the Respondent established her authority to sue for the Association.
The Appellants cannot be heard to complain on the authority of the Respondent to institute this action.
Issues No. 2 and 3 are accordingly resolved against the Appellants.

Having resolved the three (3) issues in this appeal against

the Appellants, the appeal lacks merit and it is accordingly dismissed.
N50,000.00 costs is awarded in favour of the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I agree entirely that appeal is unmeritorious and should be dismissed. I also dismiss the appeal.
I abide by all orders including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Mojeed A. Owoade, JCA. I agree the reasoning therein and conclusion arrived at, that the appeal is moribund. It is accordingly dismissed and I abide by the consequential orders contained in the lead judgment.

Appearances:

CHIDI R, ANYANWU, ESQ. For Appellant(s)

LIVINUS UDOFIA, ESQ. For Respondent(s)