ETENAM JOHN UDOIDUA & ORS v. MOBIL PRODUCING NIGERIA UNLIMITED & ORS
(2019)LCN/13082(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/C/192/2015
RATIO
APPEAL: INCOMPLETE RECORD: AN APPEAL WITH AN INCOMPLETE RECORD MUST BE STRUCK OUT
In all the circumstances therefore, this appeal cannot be heard in conscience and justice in the absence of the 1989 writ of summons which in fact was the originating writ by which the suit No. HEK/19/1989 was instituted. The record of appeal is therefore incomplete. By virtue of the decision of the Supreme Court in the case of CHIEF D. M. OKOCHI & 2 ORS v. CHIEF A. ANIMKWOI & 2 ORS. (2004) ALL FWLR (Pt. 200) 1535, the proper order is to strike out the appeal. This appeal is incompetent for reason of incomplete record and it is accordingly struck out.PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. ETENAM JOHN UDOIDUA
2. OKON SAMUEL EKANEM
3. EMMANUEL JOHN UDOIDUA
(For themselves and as representing Nung Udo Idua family, Ikot Ebok, Eket) – Appellant(s)
AND
1. MOBIL PRODUCING (NIG) UNLTD.
2. THE COMMISSIONER, WORKS & HOUSING AKWA IBOM STATE
3. THE COMMISSIONER, LAND & SURVEY, AKWA IBOM STATE
AND
4. CHIEF SAMUEL ATARA EBITU
5. PRINCE IME TOM USUNG EBITU
(For themselves and on behalf of Nung Atara family of Ikot Ebiyan Village, Eket)
AND
6. IME WARRIES AKPATANG
7. SAMUEL WILLIAM AKATA
(For themselves and as representing Nung Akata family of Ikot Ebiyan Village Eket) – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/ruing of the High Court of Akwa Ibom State Holden at Eket per Hon. Justice Theresa Obot in suit No. HEK/19/89 delivered on 10-12-2014.
The Appellants as plaintiffs in the Court below filed this action as shown in the suit No. HEK/19/89 against the three (3) sets of Respondents as Defendants in 1989. The writ of summons filed by the Appellants as Plaintiffs in 1989 is not part of the record of this appeal and by consensus of counsel in the appeal, the Appellants Plaintiff?s writ of 1989 could not be found, is missing and or was lost.
By an amended writ dated 26/04/2005, the Plaintiffs Appellants through Dr. Aquaowo Essien & Co. claimed against the Respondents defendants for
(1) A declaration that the Plaintiffs are deemed entitled to statutory right of occupancy over all that piece/parcel of land being, lying and situate at Qua Iboe River Water Front known as and called Isong Esuk, alias Mac Iver Beach, adjacent to Mobil Pegasus Club, Eket, within Eket Judicial Division, whose annual rental value is N500,00 (five
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hundred naira)
(2) Notification of right of occupancy purportedly revoked in 1989 for Mobil private car park contrary to the provisions of the Land Use Acts 1978.
(3) N15,000,000.00 (Fifteen Million Naira) being special and general damages for trespass in that on or about the 23rd of March, 1989, without let or license, the 1st Defendant trespassed into the aforesaid piece of disputed land fixed beacon stones thereon, destroyed several stands of economic trees and annual crops planted thereon by the Plaintiffs, erected wire fence and established a private car park.
(4) A declaration that the 2nd and 3rd sets of Defendants have no interest whatsoever or any iota or right over any portion of the disputed land and,
(5) Perpetual injunction restraining all the Defendants particularly the 1st set of Defendants, their servants, agents, and/or their privies from entry in the disputed piece/parcel of land and from committing further acts of trespass thereon.
On 20/06/2014, Mr. U. D. A. Imeh of counsel to the 1st Defendant in the Court below filed a motion on notice praying for the following orders:
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1. Dismissing or striking out this suit for being incompetent and an abuse of the judicial process in that-
(a) The writ of summons originating this action was not signed by any legal practitioner or any of the plaintiffs.
(b) The said writ of summons was issued in the name of a law firm.
(c) Either of the failure to sign said writ of summons, and manner of issuance, renders the writ of summons incompetent and deprives Court of jurisdiction.
The Plaintiff?s Appellants responded to the 1st Respondent?s motion on notice and on 10/12/2014, the learned trial judge delivered his ruling upheld the objection of the learned counsel to the 1st Defendant Respondent and struck out the Plaintiff?s Appellants suit as incompetent. The full of the ruling of the learned trial judge as contained on page 38 of the Record of Appeal is as follows;
RULING
I have read the preliminary objection raised by the 1st defendant by way of the motion on notice. I have read and considered the counter affidavit by the plaintiff in this case.
?I have read the written address filed by the counsel to the Applicants. I see the writ of summons
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which very sadly was filed before this Court since 1989. That writ which is Exhibit UDA 2 in this objection was neither signed by the counsel nor the litigant. It does not therefore meet the requirement of both the Legal practitioner Act 2004 and the mandatory provisions of Order 6 (2) (3) of the Rules of this Court.
The Court has addressed its mind to the argument by counsel for plaintiff that all the accompanying documents like the List of witnesses, List of Documents and Statement of Claim were signed. That may well of time been the case. However, these documents are not the originating processes. The lists of exhibits are documents that will become evidence when tendered and when the statement on oath are what will become evidence when duly adopted by the witness in Court in the witness box. The writ of summons by the rules of Court is the originating process. It is not proper if not signed.
Furthermore, there is no dispute of the fact that the signature of the Registrar issued the writ. However, the signature of the Registrar is an event that must follow a competent writ, which is an application made to the Court. In the case of SLB
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Consortium v NNPC (Supra) cited. The Supreme Court held that an unsigned process is dead at inception.
Without a writ signed as required by the law and the Rules, the plaintiffs failed in 1989 and now to fulfill condition precedent to a competent activation of the jurisdiction of the Court. See the case of Nkemdilim v Majekodunmi [sic] Madukolu v Nkemdilim. It is for the foregoing reasons that I hereby uphold the objection and accordingly order that this suit be and same is hereby struck out. I make no order as to cost.
Dissatisfied with the decision/ruling the Appellants filed a notice of Appeal containing one ground of appeal in this court on 22/12/2014. The only ground of Appeal in the Appellants notice and grounds of Appeal is:
The learned trial judge erred in law in holding that the Plaintiffs/Appellants Writ of summons filed in 1989 before coming into effect of the current High Court Rules, 2009 of Akwa Ibom State is incompetent for want of plaintiffs and or counsel signature.
The Appellants sought the following reliefs:
1. An order setting aside the judgment of the lower Court striking out the plaintiff?s
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claims.
2. A declaration that the plaintiffs Appellants writ of summons is competent before the Court.
3. An order of the Court of Appeal remitting the case to the High Court, Eket for hearing and determination before another judge.
The relevant briefs of Argument for this appeal are:
1. Appellants brief of Argument dated 06/06/2016 was filed on 20/06/2016. It is settled by Kelechi Louigbo Esq.
2. 1st and 2nd Respondents brief of Argument dated 21/10/2016 and filed on 31/10/2016 was deemed filed on 31/01/2017. It is settled by Udoh Dick A. Imeh Esq.
3. 2nd and 3rd Respondents brief of Argument filed on 01/11/2016 was deemed filed on 15/03/2017. It is settled by Eyoh Asuquo Esq., Ministry of Justice, Akwa Ibom State.
4. Appellants reply brief dated 07/02/2017 and filed on 08/03/2017 was deemed filed on 15/03/2017. It is settled by Kelechi Oluigbo Esq.
The parties adopted their respective briefs of Argument on 22/11/2018 and this honorable Court reserved the appeal for judgment.
Learned counsel for the Appellant nominated a sole issue for determination. It is:
Whether the striking out of
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suit No. HEK/19/1989 on the basis of the tenor of order 6 Rule 3 of the 2009 High Court Rules of Akwa Ibom State is proper.
Learned counsel to the 1st Respondent perhaps mere relevantly nominated this sole issue for determination:
Whether a Court is competent to hear and determine a matter where the originating writ of summons was filed by a law firm, un-signed and un-dated.
Learned counsel to the 2nd and 3rd Respondents puts the sole issue for determination of the appeal this way:
Whether the learned Judge was right in striking out the suit on the grounds that the writ of summons was issued in the name of a law firm and not in the name of a Legal Practitioner known to the law.
In considering this appeal, I shall place the submissions of the Appellants on one side of the scale, and those of the two sets of Respondents, that is 1st Respondent, and the 2nd and 3rd Respondents, as the submissions of the ?Respondents?. This is for the reason of the shared common interest between the two sets of Respondents and also for convenience.
?Learned counsel for the Appellants submitted on the sole issue that it is
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apposite to reiterate that the plaintiffs Appellants instituted the action in 1989 in accordance and consonance with the tenets of the relevant High Court (Civil Procedure) Rules enforce at the time the suit No. HEK/19/1989 was initiated.
He submitted that since the 1989 High Court (Civil Procedure) Rules of Akwa Ibom State was the relevant Rules of the Court at the time suit No. HEK/19/1989 was filed, and did not provide for the requirement of the counsel?s signature and or the parties on a writ of summons as the current 2009 Rules provide, it is wrong for the learned trial judge to have struck out the said suit for want of party?s and or counsel?s signature since the Rules of the Court at the time did not provide for it. He submitted that Order 6 Rules 3, 5, and 15 of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State provides that a writ is issued upon the Registrar of the court whose duty is/was to issue a writ and sign same.
He added that by the authority of NPA v EYAMBA (2006) ALL FWLR (Pt. 320) 1022, the issuance of writ is different from service of the writ. That a writ of summons is deemed issued upon
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its being signed by the Registrar or other officer of the Court duly authorized to sign.
He urged us to allow the appeal and remit suit No. HEK/19/1989 back to the High Court of Akwa Ibom State for hearing and determination on the merits.
The counsel to the two sets of Respondents conceded that suit No. HEK/19/1989 was initiated in 1989 and both counsel referred to form 1 that is General Form of Writ of summons under the High Court (civil procedure) Rules of Akwa Ibom State, 1989, as contained on pages 21 to 23 of the Record of Appeal first to debunk the suggestion of the learned counsel for the Appellants that the requirements of the 1989 Rules are different from the provisions and or requirements of Order 6 Rules (2) and (3) of the 2009 High Court Rules which was pronounced upon in the Ruling of the learned trial Judge.
Second, both counsel to the Respondents submitted that the requirement that a writ of summons could only be issued by a Legal Practitioner, the natural person called to the Nigerian Bar and not a law Firm as was contended in the instant case originated from the interpretation of the provision of Section 1 (2) and 24 of the
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Legal Practitioners Act Cap 207 LFN 1990 and not from a requirement of any High Court Rules. Taking off from this premise, the Respondents more especially through the 1st Respondent submitted that a writ of summons originating a suit is incompetent and strips the Court of the jurisdiction to hear and determine the suit where ?
(i) Writ of summons was issued by a law firm and or ?
(ii) Writ of summons was not signed and dated by the plaintiff(s) or counsel on his/their behalf.
The Respondents submitted that the suit on appeal was originated on 26th April, 2005 by Writ of Summons issued by a law firm, where it is clearly written ?
This writ was issued by Dr Aquaowo Essien & Co., Ikpa Isong Chambers, 2 Oron Road, Uyo for the said plaintiffs who reside at No. 7, Independence Avenue, Ikot Ebok, Eket Local Government Area.
The Respondents submitted that an inspection of the Writ of Summons or Amended Writ of Summons initiating suit No. HEK/19/1989 shows that the suit was not filed or initiated by any person legally authorized to practice law in Nigeria, and that such initiation and, or representation renders the writ,
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as in the instant case, incompetent, null and void and deprives the Court of jurisdiction.
They (Respondents) submitted that the afore-going stance is not a derivative of the Rules of Court (past or present), as canvassed by Appellants, but the Court?s interpretation of Section 1 (2) and 24 of the Legal Practitioners Act Cap 207 LFN 1990 (as amended).
Counsel to the Respondents referred to the cases of OKAFOR v NWEKE (2007) ALL FWLR (PT. 368) 1018 @ 1021; SLB CONSORTIUM LTD. V. NNPC (2011) ALL FWLR (Pt 583) 1903 and submitted that it is trite that the suit now on appeal initiated/issued/originated on behalf of plaintiffs by the law firm of ?Dr Aquaowo Essien & Co, Ikpa Isong Chambers?..? without the name of any person whose name is on the roll of legal practitioners at the Supreme Court, is fundamentally defective and was rightly struck out by the lower Court. The Respondents further submitted that a Court of law is not competent to hear and determine a matter in which writ of summons was neither signed by counsel nor the plaintiff/claimant. They (Respondents) submitted that in the instant case, the originating writ of
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summons was not signed by either counsel, or any of the plaintiffs (now Appellants). That failure to so sign renders the ?writ? incompetent and stripped the lower Court of jurisdiction to hear and determine the suit.
On this score, the Respondents referred to the cases of MINISTRY OF WORKS AND TRANSPORT (ADAMAWA STATE) & 4 ORS v ALH. YAKUBU & ANOR (2013) ALL FWLR (pt. 694) 23. OKARIKA v. SAMUEL (2013) 7 NWLR (Pt. 1352) 43 and submitted that the writ of summons in the instant case having not been signed by counsel or any of the plaintiffs is incompetent. The Respondents added referring to the case of SOLIDARITY INT?L VENTURES LTD. V. AFROSHELTERS LTD. (2009) 11 NMLR 126 @ 133 that the signature of the Registrar on the writ does not validate the defective writ of summons irregularly issued by the lack of Legal Practitioner?s signature. In fact, that the Court have gone as far as to say that whether or not the Rules of the Court so provide all originating processes must be signed, otherwise the process becomes incompetent.
?
Counsel to the Respondents reminded us that the suit on appeal was struck out for two reasons:
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(i) ?the writ of summons? does not meet the requirement of the Legal Practitioner?s Act and,
(ii) ?without a writ signed as required by law … the plaintiffs failed . to fulfill the condition precedent to a competent activation of prediction by the Court.”
And not just as suggested by the learned counsel for the Appellants, ?for the reason of want of party?s and counsel?s signature since the rules of Court at the time did not provide for it.”
The Respondents submitted that the Court?s reasons for striking out the suit are more embracing or wider in scope than presented by Appellants. That the Court?s reasons include the provisions of the Legal Practitioners Act 2004 which re-enacted the 1962 Act.
The Respondents urged us to dismiss the appeal.
In the course of writing this judgment, I noticed:
1. That by virtue of the suit No. HEK/19/1989, the suit on appeal was filed in 1989.
2. All the parties are agreed that the suit was filed in 1989.
?3. The Appellants specifically said that ?the appellants in this
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appeal sometime in 1989 took out a writ of summons against the Respondents through their (Appellant?s counsel) Akwano Essien (sic) Aquaowo Essien Esq of blessed memory in suit No. HEK/19/1989 under the relevant Rules of Court at the time.
4. That the Respondents particularly the 1st Respondent consistently referred to the Amended writ of summons filed by the Plaintiffs/Appellants in year 2005 as the originating process in the suit.
5. That the Ruling of the lower Court contained on page 38 of the Record of Appeal refers as follows ?… I see the writ of summons which very sadly was filed before this Court since 1989. That writ which is Exhibit UDA 2 in this objection was neither signed by counsel nor the litigant.?
6. That Exhibit UDA 2 however is the Amended writ of summons issued by the Plaintiffs Appellants in year 2005.
From the above facts, there was acknowledgement by the parties that the suit before the lower Court was initiated by a writ of summons filed in 1989 coupled with an impression that the learned trial judge mistook the Amended Writ of Summons filed in year 2005
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? Exhibit UDA 2 for the writ of summons which probably initiated the suit in year 1989. Meanwhile, the writ of summons filed in 1989 is not contained in the record of appeal and the parties seem to agree that the 1989 writ of summons is missing or lost and/or could not be found.
In this circumstance, this honorable Court issued hearing notices dated 28/11/2018 for the parties through their counsel to further address it on the following:
The writ of summons filed in 1989 on which the Ruling of Hon. Justice Theresa I. Obot delivered on 10/12/2014, the subject matter of this Appeal was based on is not to be found in the Record of Appeal filed on 12/10/2015 and deemed filed by this Honorable court on 10/05/2016.
The parties were ordered to file written Addresses on the above. However, on the resumed hearing on 26/03/2019, learned counsel for the Appellant who was present on the last adjourned date of hearing did not show up in Court and did not file any written Address as directed by the Court. However, the 1st Respondent and the 2nd and 3rd Respondents were respectively represented by Messers U. D. A. Imeh and Eyo Asuquo, Esq., of the
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Ministry of Justice, Akwa Ibom State. Only the 1st Respondent filed Written Address as directed by the Court as at the said resumed hearing/sitting on 26/03/2019.
Learned counsel for the 1st Respondent adopted his Written Address and Mr. Eyo Asuquo for the 2nd and 3rd Respondents aligned with the Written Address of the 1st Respondent. Learned counsel for the 1st Respondent introduced his Written Address by saying that ?parties were directed to appear and address the Court on the question of Incomplete Record of Appeal given that the ?writ of summons? filed in 1989 cannot be found in the Record of Appeal. He submitted that the general rule is that a Court must not hear an appeal on incomplete Record ? that where the Record is incomplete, the Court should call on the parties to address it. It is that Address and particular circumstances of the case that will cut the way forward for the Court. That, however aside directing the parties to address it, the Court is enjoined to direct efforts towards procuring that missing part of the Records.
But that, where all effort fails [sic] to produce the missing part, the Court will go ahead
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to hear the appeal provided that ?
(i) The parties so consent
(ii) The Court has the consent on Record and
(iii) The missing part of Record is not material in the view of the Court.
On this, 1st Respondent?s counsel referred to the decision of the Supreme Court in CHIEF D. M. OKOCHI & 2 ORS V. CHIEF A. ANIMKWOI & 2 ORS (2004) ALL FWLR (pt. 200) @ 1535. He added that where ?the Record is unusable and there is no redemption.? (e.g. a vital document is not transmitted), the Court is enjoined to strike-out the Appeal.
Again on this 1st Respondent?s counsel referred to the case of UKIRI v. EFCC (2008) 2407 SC pg 1. Learned counsel to the 1st Respondent submitted further that this Honorable Court is bound to hear this appeal on the grounds according to him that:
(a) The instant case meets the condition for hearing the appeal as propounded by the apex court in CHIEF OKOCHI & 2 ORS v. CHIEF ANIMKWOI & 2 ORS (supra) to wit ?
(i) the parties before Court have all consented to the hearing.
(ii) Parties have been asked to address Court.
(iii) The missing part of the
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Records (1989 Writ of Summons) is not material in that parties, inclusive of the Applicant are all agreed that the originating processes in this suit (whether the lost original writ or the Amended writ) was issued in the name of a Legal firm and without signature. That the issue on appeal is thus well established and known to parties.
He submitted that a careful perusal of the ruling of Honorable Justice Theresa I. Obot of the Court below showed that it was the Amended 1995 (sic) 2005 writ of summons (Exhibit UDA 2 ? pages 9,10, & 11 of Record) which he saw and mistook for the ?1989 Writ of Summons?. According to counsel, none of the parties nor the lower Court saw the 1989 writ of summons. It was not exhibited in the motion (pages 4 to 15 of Record) which gave rise to this appeal. He concluded that this Honorable court should hear the case and dismiss or strike it out. That Appellants who themselves prepared and filed the 1989 writ of summons failed to produce even their stamped copy. Such dereliction, said counsel raises dust. He urged us to strike-out the appeal.
As noted earlier on, the learned counsel to the 2nd and 3rd
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Respondents aligned himself with the above submission by the learned counsel to the 1st Respondent on the issue of incomplete record on which they were called upon to address the Court. Again, as earlier pointed out, learned counsel for the Appellant did not file any address on the question posed by this Court and did not show up on the resumed hearing on 26/03/2019.
In deciding the issue of incomplete record, and perhaps also its consequences in the circumstances of the case, I would say that the learned counsel to the 1st Respondent stated the position of the law clearly especially through the decision of the Supreme Court in the case of CHIEF D. OKOCHI & 2 ORS. v. CHIEF A. ANIMKWO & 2 ORS (2004) ALL FWLR (pg. 200) 1535.
Regrettably however, the facts and circumstances of this case do not fit into the conditions laid down for hearing an appeal when there is incomplete record.
?
In the instant case, none of the conditions highlighted by the Supreme Court for such an appeal to be heard with incomplete record is present. The parties to this appeal have not consented to hearing this appeal with incomplete record. If the Respondents
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consented, there is no indication to the fact that the Appellant consented to hearing this appeal with incomplete record. For that same reason, this Honorable Court did not record the parties as to consent to hear the appeal in spite of incomplete record.
Learned counsel to the 1st Respondent did not mince words to express his view on the idea that the missing part of the 1989 writ of summons is not material to the determination of the appeal. Appellant?s counsel did not say so. The reason why 1st Respondent?s counsel said that the 1989 writ of summons is not material to the determination of the appeal is that his motion on notice before the Court below was in fact based on Exhibit UDA 2 the amended writ of summons filed in the year 2005.
Learned counsel to the first Respondent however forgot that the Amended writ of summons of 2005 is not an originating process, yet the basis of the Ruling appealed against is that ?originating processes? that is ?writ of summons? was not signed by a legal practitioner under the Legal Practitioners Act 2004 et al. Paragraph 3 of the Ruling of the learned trial judge on page 38 of
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the record of appeal is instructive.
..the Court had addressed its mind to the argument by counsel for plaintiff that all the accompanying documents like the list if witnesses, list of documents, and statement of claim were signed. That may well of time been the case. However, these documents are not originating processes.
Also in the last paragraph of the Ruling appealed against, the learned trial judge concluded:
Without a writ signed as required by law and the Rules, the plaintiffs failed in 1989 and now to fulfill condition precedent to a competent activation of the jurisdiction of the Court. See the case of NKEMDILIM V. MAJEKODILIM (Sic) MADUKOLU V. NKEMDILIM. It is for the foregoing reasons that I hereby uphold the objection and accordingly order that this suit be and same is hereby struck out.
In all the circumstances therefore, this appeal cannot be heard in conscience and justice in the absence of the 1989 writ of summons which in fact was the originating writ by which the suit No. HEK/19/1989 was instituted. The record of appeal is therefore incomplete. By virtue of the decision of the Supreme
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Court in the case of CHIEF D. M. OKOCHI & 2 ORS v. CHIEF A. ANIMKWOI & 2 ORS. (2004) ALL FWLR (Pt. 200) 1535, the proper order is to strike out the appeal. This appeal is incompetent for reason of incomplete record and it is accordingly struck out.
There shall be no order as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCA. I endorse, in toto, the reasoning and conclusion in the concise and erudite judgment. l too strike out the appeal for being incompetent on the footing of incomplete record. I abide by the consequential orders decreed in the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, MOJEED A. OWOADE, JCA, with which I entirely agree that the appeal is incompetent for reason of incomplete record. I abide by all the consequential orders.
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Appearances:
Kelechi Louigbo, Esq.For Appellant(s)
Udoh Dick Imeh for 1st & 2nd Respondents
Eyoh Asuquo,Esq. for 2nd & 3rd Respondents
For Respondent(s)
Appearances
Kelechi Louigbo, Esq.For Appellant
AND
Udoh Dick Imeh for 1st & 2nd Respondents
Eyoh Asuquo,Esq. for 2nd & 3rd RespondentsFor Respondent
