ESSIEN & ORS v. EYO (2020)

ESSIEN & ORS v. EYO

(2020)LCN/14040(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 23, 2020

CA/C/36/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

JOHN ESSIEN & ORS APPELANT(S)

And

WISDOM ASUQUO EYO RESPONDENT(S)

RATIO

WHETHER OR NOT THE VALIDITY OF AN ORIGINATING PROCESS IS FUNDAMENTAL TO THE LEGITMACY OF ANY SUIT

The decided cases more especially from the apex Court have said that the
“Validity of an originating process in a proceeding before a Court is fundamental and the competence of the proceedings is condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceeding with valid Writ of summons goes to the root of the case and any order emanating from such proceedings is liable to as incompetent and a nullity”
See SLB Consortium Ltd. vs. NNPC [2011] ALL FWLR (pt. 583) 1902 at 1903, Ministry of Works & Transport Adamawa State vs. Yakubu [2013] ALL FWLR (pt. 694) 23 at 35.
The Supreme Court has even gone further to restate in concrete terms how processes filed in Court by a Legal Practitioner should be signed as to vest the Court with the requisite jurisdiction. Thus in the case of ALAWIYE VS. OGUNSANYA [2013] ALL FWLR (pt. 668) 800 at 808 -809 the Court said: “The processes filed in the Court are to be signed as follows:
a) The signature of counsel, which may be any contraption.
b) The name of counsel clearly written.
c) Who counsel represents.
d) Name and address of legal firm.” PER OWOADE, J.C.A.

WHETHER OR NOT THE MANNER IN WHICH THE ISSUE OF JURISDICTION IS RAISED IS MATERIAL

The manner in which an issue of jurisdiction is raised is immaterial. See Orker Jev vs. Iyortyom (2014) 58 NSCQK (pt. 11) 1113 at 150. An issue of jurisdiction can be raised at any stage of the proceedings. As in the instant case it could be raised for the first time at the stage of the Final Addresses by the parties. An issue of jurisdiction can be raised orally and even for the first time in the Supreme Court. See SALISU vs. MOBOLAJI [2014] ALL FWLR (pt. 728) 939 at 954.
This is because the issue of jurisdiction is crucial and fundamental in the adjudicatory process and intrinsic to the conduct of proceedings. See Sogbesan vs. Chief of Naval Staff [2015] ALL FWLR (pt. 803) 1918 at 1946 -1947. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Honourable Justice Augustine D. Odokwo of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on July 21, 2015. The Respondent as Claimant in the Court below brought this action representing himself and the family of Asuquo Eyo Asuquo in Ifa Akai Village Etoi Uyo against the Defendants/ Appellants by a writ of summons and statement of claim both filed on 24th July, 2013. In paragraph 19 of the statement of claim the Respondent/Claimant claimed as follows from the Defendants/Appellants.
i. A declaration that the piece/parcel of land known as and called Ndon Ikot Ifiok is a family land of Asuquo Eyo Asuquo Ekpo family.
ii. A declaration that the purported sales of the land known and called Ndon Ikot Ifiok is Illegal, null and void, and must be set aside because the vendors has no valid title to sale (sic) the land.
iii. An order directing the 2nd and 3rd Defendants to accept and collect the three thousand Naira (N3,000.00) pledged for the land.

An order directing the 1st Defendant to

vacate the land in dispute to the Claimant.
v. A perpetual injunction restraining the Defendants by themselves, servant, agents or privies however from trespassing into the land of the Claimant.
vi. The cost of this action assessed at N500,000.00.

Pleadings were filed and exchanged, witnesses were called on both sides of the divide and exhibits were tendered.

In his final address in the Court below, learned counsel for the Defendant now Appellants formulated three (3) issues for the determination of the trial Court. They are:
1. “Whether the writ of summons in this case is competent in law to invoke or activate the jurisdiction of this Honourable Court same not having been signed by the Claimant or his counsel.
2. Whether the Claimant has proved his case and pledge by preponderance of evidence as required by law to entitle him to the claim and the reliefs sought.
3. Whether the Defendant/Counter Claimants have proved their claim on the balance of probability as required by law to entitle them to judgment in the case.”

The learned trial judge in his reaction to the Defendants/Appellants issue number one has

this to say at pages 212-213 of the Record of Appeal.

“Let me first address issue number one. I have looked through the records of the Court and I have not seen where and when issue number one arose in the course of the proceedings of this case leading to the filing of written addresses by the Learned Counsel. I have not seen any process filed in respect of this issue neither did the Court order addresses from counsel on same. That being the case, I have to ignore that issue and rather consider the ones that pertained to and relevant to this case. Issue number one is hereby expunged from the records”

Ultimately, the learned trial Judge held that the Respondent/Claimant has proved the ownership of the land in dispute. He held in favour of the Respondent/Claimant and dismissed the counter claim of the Appellants. At pages 224-225 of the Record of Appeal, the learned trial judge entered judgment for the Respondent/Claimant as follows:
1. It is declared that the land in dispute which situates at Ifa Atai Etoi in Uyo Local Government Area and bounded by the following peoples land:
a. Effiong Ekpenyong Akpan
b. Bassey Okon

Asuquo
c. Enang Atoedi
d. Okon Edet Asuquo is the family land of Asuquo Eyo Asuquo.
2. It is declared that the purported sale of the land in dispute is illegal, null and void and is hereby set aside because the vendors have no valid title to sell the said land.
3. The 2nd and 3rd Defendants are hereby ordered to accept and collect the sum of Three Thousand Naria (N3,000.00) only being money pledged for the land.
4. The 1st Defendant is hereby ordered to vacate the land in dispute to the claimant.
5. It is ordered that the defendants by themselves, their agents. Servants or privies however be and are hereby restrained perpetually from further trespass on the land.
6. The defendants shall pay to the claimant costs of N60,000.00 only.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing seven (7) grounds of appeal in this Court on 21st August, 2015.

Appellant’s Brief of Argument dated 20th June, 2017 and filed on 21st June, 2017 was deemed filed on 26th March, 2019. It is settled by Nsikak E. Effiong Esq.

Respondents Brief of Argument was filed on 9th April, 2019. It is settled

by Victor U. Essien Esq.

Learned Counsel for the Appellant nominated a sole issue for determination. It is
“Whether the failure of the Respondent or the Legal Practitioner to sign the writ of summons as required by law robbed the Court below of the jurisdiction to entertain the suit.”

The sole issue nominated by the Appellant was adopted by the Respondent.

On the sole issue for determination Learned Counsel for the Appellants submitted that the Law is that, for the Court to entertain any, claim and to have jurisdiction in any matter brought before it or submitted by parties for adjudication, it must, essentially, be commenced by due process of law and upon the fulfillment of any condition precedent to assumption of jurisdiction.

After referring to the case ofNwora vs. Nwabueze [2013] ALL FWLR (pt. 691) 1492 at 1508 he submitted that the Respondent (as claimant) commenced and instituted the suit, subject matter on appeal, by a writ of summons dated and filed July 24, 2013. The said writ of summons was taken out and issued by a Legal Practitioner Victor U. Essien Esq., of Idiong – Umoh & Associates, No. 35

Ekpenyong Street, Uyo on behalf of the Respondent (as Claimant). He submitted that a close look at the writ of summons under reference reveals that, neither the Respondent nor the Legal Practitioner signed it as required by Law.

He submitted that the signing of the writ of summons is a mandatory requirement of the law and a condition precedent to the assumption of jurisdiction by the Court and in respect of the claim before it.

He referred to the case of SS (Nig) Ltd vs. Meduoye [2015] ALL FWLR (pt.763) at 2033 to say that a writ of summons is the originating process upon which other processes filed in the action are predicated.

Appellant’s Counsel further referred to Order 6 Rule 1 and Rule 2 (3) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. By the first, every originating process “shall be prepared by a Plaintiff or Claimant or his Legal Practitioner. On this, Appellant’s Counsel submitted that, in the contemplation of the Law, there is a lee-way for the Litigant to prepare and file his processes personally (alone) or by engaging the services of a private legal practitioner, who under takes to prepare and

file the originating processes on his behalf. Either way, said counsel, Order 6 Rule 2 (3) also makes it mandatory; that each copy of the originating processes filed either by a Plaintiff or Claimant “shall be signed and stamped by the Legal Practitioner or by the Plaintiff or a Claimant.”

Appellant’s Counsel submitted that it is mandatory that, the writ of summons issued by a Legal Practitioner must be signed and stamped before the Court can competently assume jurisdiction over the matter. He submitted that the writ of summons that initiated the suit was grossly incompetent and the Court below lacked the jurisdiction to entertain the matter in any event.

He referred to the cases of SLB Consortium Ltd. vs. NNPC [2001] ALL FWLR (pt. 583) 1902 at 1903 and Ministry of Works & Transport, Adamawa State vs. Yakubu [2013] ALL FWLR (pt. 694) 23 at 25 and submitted that the failure to commence proceeding with valid writ of summons goes to the root of the case and any order emanating from such proceedings is incompetent and a nullity.

Learned Counsel for the Appellant further referred to the cases of Global Soap and Detergent Ind. Ltd. vs. NAFDAC

[2011] ALL FWLR (pt.599) 1023 at 1028, Abe vs. Skye Bank Plc [2016] ALL FWLR (pt. 819) 1081 at 1100 and submitted that the rationale behind the reasoning of the Court in these cases is that an unsigned and undated document is a worthless piece of paper that has no evidence value in law.

Learned Counsel for the Appellant submitted that the learned trial judge in his decision on the issue of jurisdiction raised by the Defendants/Appellants in the Court below not only avoided a decision on the issue but also at pages 212-213 of the Record of Appeal purportedly expunged the said issue 1 on jurisdiction from the record of the Court.

He submitted that the issue of jurisdiction is constitutional and cannot be waived. He referred on this to the case ofINEC vs. CHUKWU [2014] ALL FWLR (pt. 741) 1531 at 1559 -1560 and further submitted that there is no law requiring or stating that, a party seeking to challenge the jurisdiction of the Court, particularly and as it relates to none signing of the writ of summons cannot raise it in the Final Address, with or without the leave of Court. That, indeed, it was held in the case of Salisu vs. Mobolaji

[2014] ALL FWLR (pt. 728) 939 at 954 that “the issue of jurisdiction is allowed to be raised orally and even for the first time in the Supreme Court.”

In other words, said Counsel, the manner in which an issue of jurisdiction is raised is immaterial. He referred to the cases of Orker Jev vs. Iyortyom (2014) 58 NSCQR (pt.11) 1113 at 1150, Udoeboi vs. Udousua [2017] 5 NWLR (pt.1559) 501 at 512 and summarized in conclusion as follows.
a. The originating process that initiated the action was incompetent by reason of and to the extent that, the Writ of Summons was not signed by the Legal Practitioner as required by law.
b. The issue of none signing of the Writ was raised and canvassed by the Appellants in their final Written Address for which the Court below ought to have decided on it, rather than engaging in the attack of the Appellants.
c. The issue of none signing of the Writ of Summons is a jurisdiction matter and the Appellants did not need the leave of the Court below to raise and argue it as a preliminary issue for determination.
d. The Court below was wrong in law to have ignored the issue and for expunging the issue

and the argument canvassed by the Appellants.
e. Being an incompetent process, this Honourable Court is entitled, at law, to set aside the entire trial, however well conducted.
f. It was not open to the Court below to speculate on the proper time within which the Appellants should have raised the issue of none signing of the Writ of Summons when none of the parties made an issue regarding and relating to the time and nature for raising an issue of jurisdiction.

He urged us to resolve the sole issue in favour of the Appellants and allow the appeal.

Learned Counsel for the Respondent on the other hand submitted on the lone issue that the failure of the Respondent or his Legal Practitioner to sign the Writ of Summons in the Court below, cannot rob the Court of the jurisdiction to entertain the suit.

Respondent’s Counsel referred to the cases of Duke vs. Akpabuyo (2005) 19 NWLR (pt. 959) 130, P.D.P vs. INEC & ORS. (2012) LPELR 9724 (SC) 23 at 30, Abubakar vs. Yar’Adua (2008) ALL FWLR (part 404) 1409, Akpan vs. State (1992) 6 NWLR (part 248) 439 at 471, Clement vs. Iwuanyanwu (1989) 3 NWLR (part 107) 39 at 50,

ELF Petroleum (Nig) Ltd. vs. Umah & ORS. (2018) vol. 276 LRCN 38, R. A. Oliyide & Sons Ltd. vs. O. A. U. IlE –IFE (2018) vol. 278 LRCN at page 171 and submitted that rules of Court are meant to regulate and provide guidelines for the conduct of proceedings before the Court. They are meant to assist the Court in its primary function of dispensing justice to the parties. That where strict adherence to the rules will occasion injustice, the Court will lean in favour of doing substantial justice.

He referred to the case of Adesola vs. Azeez (2013) 1 WRN 71 at 72 and submitted that it is the law that any unsigned document carries no weight even if it had been admitted in evidence. However, that the situation would be different where the maker of the unsigned document gives evidence on it.

He submitted that in the instant case, the Claimant Respondent has signed his statement of claim and adopt his Written Deposition on Oath and was cross examined by the Appellant’s Counsel.

He submitted that the issue of non-signing of Writ of summons was not raised by the Defendants/Appellants until during the final Written Address of the Counsel.

He submitted that were a party is aware of non-compliance or where Writ is defective, it is the duty of the party to act timeously and apply to strike out the suit before taking any further steps in the proceedings. He referred to the case of Nnoye vs. Anyichie (2005) 2 NWLR (part 910) 623 and submitted that once the party had noticed non-compliance but continued to participate in the proceedings, it becomes a waiver. He submitted relying on the case of Ezenwa vs. Oko (2008) 3 NWLER (part 1075) 610 that a statement of claim supersedes the Writ of Summons. That the Respondent/Claimant signed his Written Deposition on Oath while his counsel signed the statement of claim. He urged us to resolve the sole issue in favour of the Respondent.

The parties is this case are not in dispute as, to the fact that Victor U. Essien Esq., who prepared the Writ of summons contained on pages 2-3 of the Record of Appeal did not sign same as mandatorily required by Order 6 Rule 2 (3) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. Unfortunately, in his submissions, the learned counsel for the Respondent mixed up the effect of non-compliance leading to

irregularities under the Rules of Court with the jurisdictional issue of the need for parties and or their legal practitioners to append their signatures to originating processes which as in this case include a Writ of Summons.
The decided cases more especially from the apex Court have said that the
“Validity of an originating process in a proceeding before a Court is fundamental and the competence of the proceedings is condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceeding with valid Writ of summons goes to the root of the case and any order emanating from such proceedings is liable to as incompetent and a nullity”
See SLB Consortium Ltd. vs. NNPC [2011] ALL FWLR (pt. 583) 1902 at 1903, Ministry of Works & Transport Adamawa State vs. Yakubu [2013] ALL FWLR (pt. 694) 23 at 35.
The Supreme Court has even gone further to restate in concrete terms how processes filed in Court by a Legal Practitioner should be signed as to vest the Court with the requisite jurisdiction. Thus in the case of ALAWIYE VS. OGUNSANYA [2013] ALL FWLR (pt. 668) 800 at 808 -809 the Court said: “The

processes filed in the Court are to be signed as follows:
a) The signature of counsel, which may be any contraption.
b) The name of counsel clearly written.
c) Who counsel represents.
d) Name and address of legal firm.”
Learned Counsel for the Respondent in the instant case trivialized the issue of non-signing of Writ of summons by a Legal Practitioner and dubbed it as non-compliance with the Rules leading to irregularity.
Suffice to say the non-signing of Writ of summons being an originating process is not a mere irregularity but a jurisdictional issue.
In the case of Udoeboi vs. Udousua [2017] 5 NWLR (pt. 1559) 501 at 512 wherein, in interpreting the provisions of Order 6 Rule 1 and 2 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 the Court held thus:
“The Writ of Summons here which initiated the Appellant’s case as well as the amended Writ of summons were not signed and accordingly not shown to have been prepared by a legal practitioner known to Law, the issue is not a mere irregularity, pursuant to the 2009 rules of the High Court of Akwa Ibom State, but an issue of substantive law

pursuant to the Legal Practitioners Act.” It goes without saying in relation to this appeal that the both the learned trial judge and the learned counsel for the Respondent are wrong in their imagination that the issue of jurisdiction needed any formalities to be brought before the Court. This is not so. The manner in which an issue of jurisdiction is raised is immaterial. See Orker Jev vs. Iyortyom (2014) 58 NSCQK (pt. 11) 1113 at 150. An issue of jurisdiction can be raised at any stage of the proceedings. As in the instant case it could be raised for the first time at the stage of the Final Addresses by the parties. An issue of jurisdiction can be raised orally and even for the first time in the Supreme Court. See SALISU vs. MOBOLAJI [2014] ALL FWLR (pt. 728) 939 at 954.
This is because the issue of jurisdiction is crucial and fundamental in the adjudicatory process and intrinsic to the conduct of proceedings. See Sogbesan vs. Chief of Naval Staff [2015] ALL FWLR (pt. 803) 1918 at 1946 -1947. For the above reasons, the only issue in this appeal is resolved in favour of the Appellant.

This appeal is meritorious and it is allowed. The

Judgment and orders of the Hon. Justice Augustine O. Odokwo of the Uyo High Court of Akwa Ibom State of Nigeria dated 21st July, 2015 in Suit No. HU/440/2013 are set aside.

Suit No. HU/440/2013 is accordingly struck out.

N30,000.00 costs is awarded to the Appellants.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had privilege of reading in advance the judgment just delivered by my learned brother M . A. OWOADE, JCA- I am in full agreement with the resolution of the appeal.

I also abide by the trial orders of Court made in the lead judgment particularly allowing the appeal.

Appeal is allowed

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother Mojeed A. Owaade, JCA, obliged me with the draft Of the lead judgment just delivered. I agree that an issue of jurisdiction could be raised at any stage of the proceeding and even for the first time in the Supreme Court.
The appellant’s complaint is on the issue of non-signing of the writ of summons by legal practitioner which the respondent contend that same must be raised timeously before taking any procedural step in the proceedings.

I am in complete agreement with my noble lord in the lead judgment that both the learned respondent’s counsel and the learned trial judge are wrong in their perception that the issue of jurisdiction, needed formalities before being raised. Jurisdiction being the backbone of any adjudication cannot by connivance, acquiescence, or collusion of the parties be conferred on a Court Thus, where a Court lacks jurisdiction parties in litigation cannot confer jurisdiction on the Court. As a matter of law, lack of jurisdiction cannot be waived by one or both parties. In the instant case, the failure to sign and or endorse the writ of summons, being an originating process divest the trial Court of the requisite competence and jurisdiction to entertain the suit. I too allow the appeal and set aside the incompetent writ of summons in suit No. HU/440/2013.

Appearances:

Nsikak E. Effiong Esq. For Appellant(s)

Victor U. Essien Esq. For Respondent(s)