EZECHUKWU & ORS v. EZEANYAGU & ORS
(2020)LCN/14313(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/AW/01/2017
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
1. IGWE EZECHUKWU 2. ISAAC EZENWANNE 3. PAUL EZENWANNE APPELANT(S)
And
- PAUL EZEANYAGU 2. SIMON EZEANYAGU 3. SUNDAY EZEANYAGU 4. AMOS EZEANYAGU 5. EPHRAIM EZEANYAGU 6. CYRIL EZEANYAGU (For Themselves And As Representing Ezeanyagu-Ezembaji Family Of Ozora Akukwa Village, Umuchu Town In Aguata Local Government Area Of Anambra State, Nigeria.) RESPONDENT(S)
RATIO
WHETHER OR NT FAILURE OF A COUNSEL TO SIGN THE ORIGINATING PROCESS GOES TO JURISDICTION
It is apparent that no name of Counsel is stated as having signed the originating process. The signature on the process is not describable. In other words, we do not know who signed the process and this in law makes the entire proceedings defective.
Failure of a known Counsel to sign the originating process goes to jurisdiction, and jurisdiction, being the threshold of judicial power and judicialism, and by extension extrinsic to adjudication, parties cannot by connivance, acquiescence or collusion, confer jurisdiction on a Court where jurisdiction is lacking – OKOLO V. UNION BANK OF NIGERIA PLC 2004 ALL FWLR (pt 197) 981; FGN V. OSHIOMOLE (2004) 3 NWLR, pt. 860 @ 305. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Aguata High Court delivered on the 10th of October, 2016 in Suit No. AG/35/2009 in which the Respondents (Plaintiffs in the Court below) were given judgement.
The Defendants/Appellants are dissatisfied with the decision and have appealed it.
SYNOPSIS OF THE CASE
In the further further amended statement of claim dated 17th June, 2012, the Plaintiffs (Respondents in the present appeal) sought relief from the Court below in the following terms:
a) A declaration that the Plaintiffs are entitled to a Customary Right of Occupancy over Ohia Obite land lying and situate at Ozara-Akukwa in Umuchu Town, Aguata Local Government Area of Anambra State, Nigeria (which land is covered by Survey Plan No. AC/LD07/2012).
b) Tresspass to Ohia Obite N5000,000 (N5m).
c) Injunction perpetually restraining the defendant s by themselves and or their agents, servants, and or workmen from interfering or continuing to interfere with the said Ohia Obite or any part thereof. (see pages 34 to 48 of the Records of Appeal.
The Defendants (Appellants)
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Counter-claimed in their further amended statement of Defence dated 6th December, 2012, and filed on the 7th of December, 2012 on page 72 of the Record of Appeal as follows:
The Defendant for themselves and as representing the Ezechukwu and Ezenwanne families of Uhualla, Ozara-Akukwa village, Umuchu, Aguata Local Government Area of Anambra State of Nigeria Counter-claim against all the Plaintiffs jointly and severally as follows:
a. A declaration that the Defendants are entitled to the Customary right of Occupancy over Ohia Obite (land) labelled “Parcel C” and verged green in Defendants’ Survey Plan No. FCC/AN/LD 002/2011 filed with the Amended Statement of Defence as it is their inheritance from their ancestor Uhialla son of Ozara -Akukwa in Umuchu Town, Aguata Local Government Area of Anambra State of Nigeria.
b. Perpetual injunction restraining the Plaintiffs by themselves, their agents, servants, privies, assigns and workmen, from entering into, trespassing into and or interfering with the said parcel C of Ohia Obite (land) situate and lying in Uhualla, Ozara-Akukwa in Umuchi Town, Aguata Local Government Area of Anambra
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State of Nigeria as shown in the Defendants Survey Plan.
c. N15,000,000 (Fifteen Million Naira) only general damages for trespass jointly and severally against all the Plaintiffs.
Dissatisfied with the decision of the Court action, the Appellants filed a Notice of Appeal, (pursuant to the Practice Direction of this Honourable Court) on the 3rd of January, 2017 encapsulating twenty-seven grounds of Appeal. See pages 286 – 309 of the Record of Appeal.
On the same date, they filed an additional grounds of Appeal. This makes the total grounds of Appeal twenty-eight (28) in number. See pages 310-311 of the Record of Appeal.
The Appellants proffered (11) issues for determination for their twenty-eight grounds of Appeal.
They are:
(i) Whether the Learned Trial Judge was right in law when he refused to evaluate the evidence of DW1, DW2, DW3 and DW 4 on the ground that they are “phantom boundary witnesses” because DW4 gave evidence in Court while his father is alive.
(ii) Whether the Learned Trial Judge was right in law when he invoked Section 167(d) of the Evidence Act 2011 against the Defendants because the
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father of the DW 4 did not come to testify in Court.
(iii) Whether the Learned Trial Judge was right in law when he found that PW6 is the undisputed “Isi Obi” (Head) of the Umuchu town,” that he was engaged in a chieftaincy tussle with the 1st Defendant and gave an eye witness account of the oath taking exercise.
(iv) Whether the Lower Court was right in law when he gave credibility to the evidence of PW2 because he is a blood relation of the 1st Defendant and gave a concise account of the oath taking exercise which he did not attend.
(v) Whether the learned Trial judge was right in law when he ignored the evidence of acts of ownership and possession done by the Defendants in recent times.
(vi) Whether the Lower Court was right in law when it believed the Plaintiffs story of oath taking without evaluating the evidence led in support of it and failed to give equal treatment to both parties with reference to the evidence led.
(vii) Whether the Trial was right in law when he said that he found only the land of Agba family of Akokwa in Exhibit P1 and failed to invoke Section 35 of the Evidence Act 2011 in favour of the
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Defendants.
(viii) Whether the lower Court was right in law when he imposed two million naira damages against the Defendants.
(ix) Whether the Learned Trial Judge was right in law when he dismissed the Defendants Counter-claim without evaluating their pleadings and evidence.
(x) Whether the Lower Court was right in law in awarding a cost of three hundred thousand naira against the Defendants.
(xi) Whether the Suit is competent in view of the fact that the Writ of Summons was not signed by the Plaintiffs or their Counsel.
Issue No. XI can put thus:
“Whether the Suit is competent in view of the fact that the Writ of Summons was not signed by the Plaintiffs or their Counsel and it is therefore incompetent.”
This issue in my view goes to jurisdiction and is one that should have been presented before Court by way of preliminary objection.
Be that as it may, this Honourable Court will not shut its eyes to the resolution of that issue.
It is evident that no issues were proffered or distilled from grounds 1, 5, 6, 7 and 19 of the Notice and Grounds of Appeal. That makes those grounds of none effect. Consequently,
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I hereby strike out grounds 1, 5, 6, 7 and 19 respectively.
The Appellants had filed their brief of argument on the 2nd of February, 2017, and a Reply brief of argument on the 15th of March, 2017.
The Respondent filed their brief of argument on the 28th of February 2017, with a Notice of preliminary objection in their un-paginated brief of argument as follows:
a. Appeals are directed against the ratio decidendi of the judgement appealed against not obiter dicta.
b. Grounds of Appeal and issues for Determination formulated based on obiter dicta are incompetent.
c. All the issues for Determination are incompetent not based on the Ratio decidendi of the judgement of the Learned trial judge.
d. Issue number eleven was not canvassed before the lower Court, the opinion of the Lower Court not elicited thereon, no leave of the Lower Court or the Court of Appeal was obtained before raising same, and it is therefore incompetent.
I observe that the Respondents, apart from their failure to paginate their brief, did not indicate the number of issues for determination which they rely on. This, in my view makes the Respondents brief very
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inelegant. They have left this Honourable Court to glean through their brief to fathom how many issues for determination they rely on. I am of the view that they are eleven in number, and indeed they adopt the issues for determination of the Appellant.
I shall however consider this Appeal based on the Appellant’s issues alone.
It is pertinent however that I consider the merits of the preliminary objection raised by the Respondents first. The Grounds of preliminary objection raised by the Respondents are that:
(a) Appeals are directed against the ratio decidendi of the judgment appealed and not against obiter dicta.
(b) Grounds of Appeal and issues for determination formulated based on obiter dicta are incompetent.
(c) All the issues for determination are incompetent not based on the ratio decidendi of the judgement of the Learned Trial Judge.
(d) Issue number eleven was not canvassed before the Lower Court, the opinion of the Lower Court not, elicited thereon, no leave of the Lower Court or the Court of Appeal was obtained before raising same, and it is therefore incompetent.
The preliminary objection proffered no
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Grounds for the preliminary objection. He simply stated the objection and left this Court to guess what the grounds are. Suffice to say however that (a) (b) and (c) are in essence stating that the judgments are appealed based on the Ratio decidendi and not on the obiter dicta.
No (d) talks about whether the Suit is competent in view of the fact that the Writ of Summons was not signed by the Plaintiffs or their counsel. That in my view is a direct issue which goes to jurisdiction. It only needs that this Court takes a look at the Writ of Summons to see whether the preliminary objection is tenable or not.
More so, whether in the circumstances, leave of the Court below or the Lower Court is necessary when the matter goes to jurisdiction.
There is no gainsaying that issues of jurisdiction are of LAW not FACTS. See – Section 241 of the Constitution of the Federal Republic of Nigeria 1999. Jurisdiction that goes to substance does not need leave of Court to Appeal.
A cursory look at the originating process in the Court below i.e. the Writ of Summons shows ex-facie the following features viz:
A. (i.) “The claim is for declaration of
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title in that the Plaintiffs in possession are the rightful owners lawfully entitled to the ownership and possession of that piece or parcel of land situate and lying at the jurisdiction of Aguata and Ojedi Roads, Onitsha which landed property is part of OGBEMBUBU ONITSHA, in Onitsha Urban Division of the East Central State.
(ii.) DAMAGES of N5,000,000 (Five million naira only) being special and general damages suffered by the Plaintiffs as result of acts of trespass committed by the defendants, their servants and agents. …“
B. This process was signed for Ndiwe and Co., Solicitors – for the Plaintiffs.
C. The process was filed on the 22nd of December, 1975, and dated the 9th of December, 1975. – Pages 1-7 of the Record of Appeal (Vol. 1).
It is apparent that no name of Counsel is stated as having signed the originating process. The signature on the process is not describable. In other words, we do not know who signed the process and this in law makes the entire proceedings defective.
Failure of a known Counsel to sign the originating process goes to jurisdiction, and jurisdiction, being the threshold of judicial power
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and judicialism, and by extension extrinsic to adjudication, parties cannot by connivance, acquiescence or collusion, confer jurisdiction on a Court where jurisdiction is lacking – OKOLO V. UNION BANK OF NIGERIA PLC 2004 ALL FWLR (pt 197) 981; FGN V. OSHIOMOLE (2004) 3 NWLR, pt. 860 @ 305.
The same mistake was repeated by the Appellant in other processes. In their Notice to produce filed on 5/3/1980, he made the same blunder. Page 81 of the Record of Appeal. The defect in the originating process is incurable as it goes to the very root of the matter. You cannot put something on nothing as both of them would collapse. – MACFOY V. UAC. In their reply to the statement of Defence of the Defendants dated 12/10/1979 and filed on same date, the same mistake was repeated – Page 78 – 80 of the Record of Appeal. It is therefore not a case of inadvertence, see page 18. Without belabouring this issue, it suffices to state even though the Respondents did not file a preliminary objection stricto sensu, the fact that he brought up the fact as to signature is significant as it is an issue of jurisdiction which is fundamental.
No leave was required by the
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Respondents. It was an issue of Law, and it becomes a matter of Right constitutionally for the Respondents to bring it up as of right.
On the basis of these, I am of the view that this Appeal becomes comatose, as the suit, the subject matter of the Appeal was dead on arrival.
In the Legal Practitioner Act 1975, Section 2 (1) thereof, it provides thus:
“subject to the Provisions of this Act a person shall be entitled to practice as a Barrister and Solicitor if, and only if his name is on the Roll.”
In the case of SLB Consortium Ltd V. NNPC (2011) 9 NWLR. Pt 1252 at 317, the Apex Court considered a situation where originating processes were signed by Law Firms whose names were not on the Roll of Legal Practitioners in Nigeria.
In this present case, Ndiwe & Co is not a name in the Roll of the Supreme Court, neither is it a name recognized by law.
The argument of the Learned Counsel for the Appellants that the Registrar in charge of the Aquata Judicial Division of the Anambra State High Court holden at Ekwelobia duly signed the Writ of Summons in this Suit Pursuant to Section 57 of the High Court Law 1991 and Form 1
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made Pursuant to Order 3 Rule 3 of the High Court Rules 2006 is utterly misconceived.
In GTB V. INNOSON NIG LTD 2017 LPELR 42368 SC, EKO JSC, had this to say inter alia:
“It is trite that it is the seal or signature of the author of a document that authenticates the document, a legal document or process of Court, must be settled or signed by either the legal practitioner of the choice of the Litigant, or the Litigant himself.
The disputed processes were purportedly settled or signed by a Legal Practitioner, whose identity is unknown, were ex facie, a Court process, it is uncertain if the process was signed by the Litigant or the Legal Practitioner representing him, the process is incompetent. Court process must either be signed by Litigant himself, or by Legal Practitioner retained by him. 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 decision of this Court is SLB CONSOTIUM LTD V. NNPC and many others in Court process prepared and filed by a Legal
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Practitioner, clearly demonstrates that for the signature thereon appended to be valid, it must be traceable to a Legal Practitioner.
The process must have the signature or mark of the Legal Practitioner, either against his name or over and above his name.”
A perusal of the signature on the process in this case, does indicate that Ndiwe & Co., is not in the Roll of the Supreme Court. Secondly, there is nothing to suggest or indicate that the signature above Ndiwe & Co., is that of a legal Practitioner. There is indeed nothing to indicate that the signature belongs to anybody.
From records, the Suit, the subject matter of this Appeal was filed on the 22nd of December, 1975. The Legal Practitioners Act came to place in the year 1962, but was amended in the year 1975. The provisions of Section 2 of the Legal Practitioners Act 1975 therefore was applicable. The Plaintiff was mandated therefore in law to have his Counsels’ name and signature on the originating process.
As I have consistently stated in this judgement, failure of the Appellant to comply with the provisions of Section 2 of the Legal Practitioners Act, 1975 renders
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the entire proceedings that was predicated on the originating process in Suit No. AG/35/2000 null and void. The preliminary objection is hereby upheld.
The Appeal has no merit and same is hereby dismissed.
No order as to costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead judgment delivered by my learned Brother, R. N PEMU, JCA.
I agree that failure of the Appellants’ Counsel to comply with the Provisions of Section 2 of the Legal Practitioners Act, 1975 rendered the entire Proceedings in Suit No. AG/35/2000 null and void.
I also uphold the Preliminary objection and dismiss this appeal. I abide by the order as to costs in the lead judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother PEMU, J.C.A.
I agree with and adopt the decision reached by my brother in the lead judgment that this appeal lacks merit. I also dismissed same and affirm the judgment delivered by the trial Court on 10th October, 2016 in suit No. AG/35/2000. I also abide by the order as to cost.
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Appearances:
Chief Okwuchukwu Ugolo SAN, FCIArb For Appellant(s)
S. Nwankwo SAN For Respondent(s)